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[2022] ZAECMKHC 82
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S v Botha (22/2022) [2022] ZAECMKHC 82 (21 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
NOT
REPORTABLE
Case
no: 22/2022
In
the matter between:
THE
STATE
and
PHILANI
AIDEN BOTHA
Accused
JUDGMENT
Govindjee
J
[1]
Mr
Botha was charged with rape in contravention of s 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act,
2007 (‘the
Sexual Offences Act’).
[1]
It was alleged, following an amendment to the charge sheet, that he
penetrated the complainant, a seven-year-old girl, per vaginam
without her consent during August or September 2020
.
The State’s case
[2]
MK, the complainant’s grandmother,
testified that Mr Botha was a family relative. She had sent the
complainant to his home
for a mobile application to be installed on
her device. He had attended to such work previously. Upon her return,
the witness asked
the complainant why there had been a delay. The
response was that Mr Botha had been busy with the device. After
returning the device,
the complainant went to sleep. She appeared to
be normal, and the witness had no reason to suspect that anything was
amiss.
[3]
On 6 October 2020, the witness’
daughter (‘D’), who is the complainant’s mother,
and the complainant had
spoken to her. The complainant was in tears
and D enquired about a discharge that was evident on the child’s
panties. It
was brownish in colour and contained some blood. The
complainant indicated that she wanted to speak to her grandmother
alone. They
went to a different room where the complainant asked her
not to tell her mother what she was about to tell her. Her mother
would
wish to fight, and the child feared the accused. The
complainant, emotional, crying and scared, proceeded to tell the
witness the
reason for this fear: Mr Botha had raped her on the day
she had been sent to him with the cellular phone.
[4]
The witness discussed the matter with D.
They decided to contact Mr Botha’s father. He arrived at their
home and was told
what had occurred. The child was undressed and the
father was shocked when he saw that the opening of her vagina was
red. He requested
that the child be taken to the doctor for an
examination the following day.
[5]
Under cross-examination, the witness could
not dispute that she had sent the complainant with the phone during
August 2020. It had
been early in the afternoon. The witness was
unable to indicate how long the child took and denied that the child
had only been
away for a 15-to-20-minute period. This was because she
remembered enquiring, upon the child’s return, why she had
taken
so long. The complainant had replied that Mr Botha had been
fixing the phone. The witness had not noticed anything amiss at the
time, or during the days that followed. The witness maintained that
the complainant had mentioned Mr Botha by name as her rapist
on the
evening that D had noticed the discharge on the panty. She had a
close relationship with the complainant, had been emotionally
disturbed and not made further enquiries.
[6]
The witness explained that the complainant
had visited Mr Botha’s home in the past. The children of that
household were older,
and the complainant usually played with younger
children. It was put to the witness that the children of that
household played
several games, on numerous occasions, with the
complainant at Mr Botha’s homestead. This included drawing on
the floor and
playing with little rocks. She denied that she had
agreed, a few days later, to pay Mr Botha R15 for fixing the phone.
[7]
The
complainant, now aged nine, testified through duly appointed and
suitably qualified intermediaries. The complainant testified
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.
[8]
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 Criminal
Procedure Act, 1977 (‘the Act’).
[9]
She testified that she had been sent by her
grandmother for Mr Botha to install Whats App for her. She knocked on
two doors in the
household premises without response. Mr Botha opened
the third door and she informed him of the reason for her visit and
handed
him the phone. She stood outside. He called her to his room to
fetch the phone. He covered her eyes with something like a towel
and
covered her mouth with his hand. He lowered her pants and panties and
asked her to bend forward, before inserting his penis
into her
vagina. When she was about to exit the room, Mr Botha threatened to
kill her if she mentioned what had occurred. She took
the phone and
ran home, scared. She gave the phone to her grandmother. At some
point her grandmother had been called to the front
room and told
about the incident.
[10]
The complainant could not remember the date
of the incident. She had never entered Mr Botha’s room before.
She had not observed
anybody else present at that household. She had
stood outside while he installed the application on the phone. She
explained, with
the aid of dolls, and using slang words for private
parts, that Mr Botha had inserted his penis into her vagina and that
she had
felt pain.
[11]
The incident came to the attention of the
elders in her house when she had requested her mother to accompany
her to the toilet and
her mother observed something white with blood
on her panty. She had not wanted to tell her mother what had caused
this and had
cried. Her mother had shown her grandmother the
discharge. The complainant did not wish to discuss the matter with
her mother and
told her grandmother in the lounge what had occurred.
She was concerned that her mother would fight with Mr Botha. Her
grandmother
told her that she would tell D. Mr Botha’s family
had subsequently been summoned so that they could be informed. Mr
Botha’s
father advised that they would visit a doctor in
Makhanda the following day. She, her mother, and Mr Botha’s
father did so.
She was examined and given pills but nothing else had
resulted. She was subsequently examined at a clinic in Riebeek East
and then
referred to Settlers Hospital for examination by a doctor.
The complainant confirmed that she was depicted in a photograph,
admitted
into evidence, pointing at the spot in Mr Botha’s
bedroom where she had been standing, near his bed, at the time she
was
raped.
[12]
The complainant denied that she had played
the ‘Crazy Eights’ card game with K and A, two other
young children, on the
day in question. She also denied that Mr Botha
had been sweeping the floor in the area outside his home when she had
visited. She
confirmed many of the statements she had made to the
police in the presence of her mother relating to the incident. This
included
that Mr Botha had threatened to kill her with an axe. The
statement also indicated that she had been afraid to tell her
grandmother
what had occurred because of her fear, and that she did
not know which date she had asked her mother to accompany her to the
toilet.
[13]
She confirmed under cross-examination that
she had not returned home and reported the incident to her
grandmother on the day it
had occurred. After having reported the
matter, she had cried in her bedroom and Mr Botha’s parents had
been summoned. She
later testified as follows:
‘
After
you came back from [Mr Botha’s] home did your grandmother ask
you why you took long?
Yes
What did you say?
I said [Mr Botha] made me
wait outside then he called me, I got inside and he closed my eyes
and mouth.
So you told her what
happened on the same day when you came back from [his] home?
Yes
[But what about your]
statement that “on arrival I gave my grandmother the cell phone
and kept quiet”?
Yes
The statement doesn’t
say anything happened to you?
Yes
But in evidence you now
say that your grandmother asked why you took long and you told her
what happened?
Yes
These are different
stories.
(No
comment.)’
[14]
The complainant conceded, when her
testimony resumed following illness which necessitated a postponement
midway during cross-examination,
that she may have made a mistake
about this portion of her testimony. She denied, however, that she
had been mistaken in asserting
that K and A had not been present and
that the children had not played a card game together. It was not put
to the complainant
that Mr Botha’s aunt had also been present
and observed the scene.
[15]
During re-examination, the complainant
testified that she had seen Mr Botha sweeping with a broom near the
doorway of his bedroom
when she arrived on the day of the incident.
She repeated this when asked during further cross-examination
permitted by the Court.
With respect to the actual incident, however,
she reiterated that Mr Botha had undressed her and penetrated her.
She denied she
was mistaken in that regard, adding ‘He did
undress me … He did insert it’.
[16]
Dr McConney testified that he was the
clinical manager at Dora Nginza Hospital. He had previously examined
many sexual assault victims
and testified with reference to a J88
Report that he had duly completed on 16 October 2020, when the
complainant was seven years
old. The conclusion he had reached
referred to sexual assault. In particular, he highlighted that the
child’s hymen was not
intact, suggesting that penetration had
occurred. A purulent discharge on the vaginal orifice was also
depicted in the diagram
forming part of the J88 form. He explained
that this was because of the presence of yellow pus, which was
indicative of an infection
and was abnormal. That discharge was
linked to the hymen not being intact and penetrated. Penetration
could have occurred via a
penis, a finger or another object. An
infected penis could transmit an infection to a vagina through
penetration. The examination,
including the history provided to him,
resulted in his conclusion that sexual penetration with a penis had
probably occurred. The
timeframe provided to him suggested that a
rape had been perpetrated two weeks previously, and this timeframe
was probable when
considering what he had observed during the
physical examination.
[17]
A second J88 report had been completed by
the witness in similar vein a few hours later. He explained that this
was due to the child
having been anxious and uncooperative during the
initial examination. He had then sedated her in theatre to exam her
in more detail.
The remnants of the damaged hymen had been observed
in more detail, resulting in Dr McConney noting on the second report
that it
was ‘patchy’. The doctor’s conclusion
remained the same, namely that penetrative sexual intercourse had
taken
place.
[18]
Under cross-examination, Dr McConney
testified that a sexually transmitted disease or infection could keep
manifesting for up to
a month if left untreated during the first
week. The hymen was usually a continuous membrane. It had been torn
and damaged, as
occurred when the vaginal orifice was penetrated. The
tear was not continuous, resulting in the second report describing
the hymen
as ‘patchy’. There was no reason for the hymen
to be damaged in that way without penetration. Penetration could
occur
in various ways other than through penile penetration, because
of the insertion of a finger or object. The infection observed could
have been caused through insertion of a dirty object, including a
dirty finger containing traces of bacteria. The doctor’s
conclusion had been based on the history he had been provided and the
purulent discharge. Given the time that had elapsed, he testified
that there could be no forensic evidence linking Mr Botha to that
penetration.
The defence case
[19]
Mr Botha testified that the complainant was
related to the father’s side of his family and that she stayed
close to his homestead.
The complainant would usually play with his
sister at that homestead. She would visit the homestead frequently,
also to play with
a cousin’s sister, as the complainant was
related to their family. The two girls were referred to as “A”
and
“K”. They played lots of games, including cards and
playing with dolls.
[20]
Mr Botha had been sweeping the yard on the
day of the incident. The complainant had arrived and explained that
her grandmother had
sent her to him so that he could repair her cell
phone. Whats App had expired and needed to be downloaded. After he
took the phone
from the complainant, A and K came out and asked the
complainant the reason for her visit. She stood with them near the
outside
tap. Mr Botha went to fetch his phone to attend to the Whats
App issue. Having done so, he advised the complainant that she must
inform her grandmother that the cost would be R15. She took the
phone, exited the gate and went home.
[21]
K and A had been present during the
incident and the complainant had played with them. Mr Botha’s
aunt (‘LB’)
had also been present, and the complainant
had visited for ten minutes. She had not entered his flat but had
been playing with
the two other girls at the tap while he worked on
the phone. He denied undressing her, penetrating her or threatening
her. He met
her grandmother the following day on his way to the shop.
She informed him that the complainant had advised her that the work
on
the phone would cost R15. She promised to pay him when she had
this money and he agreed with this arrangement.
[22]
The incident had occurred during the first
week of August 2020. Nothing transpired until 2 September 2020 when
another aunt (‘LM’)
had arrived at their homestead,
crying and asking him how he could do such a thing. She had been at
the home of the complainant
and informed Mr Botha that he was being
accused of rape. His father and LB advised him to remain at home
while they went to the
complainant’s home to make enquiries. He
came to hear from other people what had transpired thereafter. The
complainant had
been crying and could not respond when questioned. It
was arranged that she should be taken to a private doctor, who
concluded
that nothing had happened to the child. The incident only
reared its head again during October 2020, when he was arrested.
[23]
Mr Botha confirmed that A and K were both
older than the complainant. A was born in 2011 and K in 2007. He
testified that the complainant
would not frequent his homestead but
would sometimes come to play there, approximately on two days per
week. Before the incident,
she had last visited during December 2019,
with adults, when he had been involved in a ceremony. She had not
visited for approximately
seven months but the children would
sometimes play in the street, along with other children in the
location.
[24]
Mr Botha recalled that he had worked until
13h30 and that the complainant had arrived at 14h00. A and K returned
from school around
13h00. When asked why he was convinced that this
was during the first week of August, he referred to LM’s
arrival on 2 September
2020, when he first heard about the
allegation. He had informed her that he would never do such a thing.
Thereafter his father
and LB had visited the complainant’s home
to inspect the child, who was taken to the doctor by his father, the
child’s
mother and grandmother, on 3 September 2020. It was not
in dispute that she had been examined at Settler’s Hospital
during
October 2020.
[25]
Mr Botha testified that there was no bad
blood between him and the complainant and there was no reason for her
to fear him. He had
not threatened her or raped her as she had
described and did not know why he was being accused of this.
[26]
He testified that the three children had
been playing cards that day but was unsure as to how long this had
continued. A and K had
been inside the house when the complainant had
arrived. He was sweeping at the time. By time he took the phone
inside the other
girls were outside and had asked her the reason for
her visit. She had already told him why she was there and he heard
her tell
the children while on his way to his room. From his room he
could hear them speaking and see them playing. They were not making
any noise and were just playing cards. When asked how he could see
the children, as his room did not have a window facing the area
in
which they were playing, Mr Botha explained that he had taken his
phone from his room and downloaded Whats App while standing
outside.
The children were playing approximately 25 metres away and he called
the complainant. She left the other children, approached
him to
receive the phone, was informed of the cost and left without
finishing the game or speaking to the other children again.
They
continued to play.
[27]
LB had been inside the house in the kitchen
and would have heard him speaking to the complainant. She came out of
the house and
noticed the phone brought by the complainant. She went
to the tap to pour water as there was no tap inside the house. After
the
Whats App had been downloaded she returned to the house,
approximately at the time the complainant was called to collect the
phone.
The complainant would have been visible to her for almost the
entire duration of her visit.
[28]
K testified that she was 14 years of age
and in grade 9. She would play with the complainant in the location
and at her homestead.
They were related but lived in separate houses.
They would usually play the Crazy Eights card game. K recalled the
complainant
arriving with the phone at approximately 14h00. She and A
were already playing Crazy Eights at the time, behind the vehicle.
The
complainant had arrived with a cell phone. Mr Botha was sweeping
near the tap and she gave the device to him before joining them.
He
then went into the room with the phone while they played for
approximately 15 minutes. Mr Botha then brought the phone to them
and
handed it to the complainant who left for home.
[29]
K testified during cross-examination that
the complainant had not visited their home for a long time before
that day. She and A
would play with the complainant. LB, her mother,
was at home in the main house at the time. K had returned from
school, eaten,
done her homework for approximately five to ten
minutes and then played the card game. K recalled that she had
isiXhosa homework
and had written a story. ‘A’ was at her
homestead, which was nearby, at the time. ‘A’ had brought
the cards
for them to play the game. The area they had played in,
behind the vehicle, was visible from the main house and Mr Botha’s
room, which was approximately thirty metres away from where they were
playing. She had heard the complainant tell Mr Botha the
reason for
her visit upon arrival, as they were in that area already playing
cards. She nevertheless later testified that she and
A had asked her
the reason for her visit when she joined their game. When asked why
this was necessary if she had already heard
the conversation between
the complainant and Mr Botha, she replied:
‘
She
was not someone who would usually visit our homestead.’
[30]
K added that the children usually played
with the complainant in the street, not at home. Mr Botha had taken
the phone to his room
but had not been gone for long before returning
and giving it to the complainant while she was involved in the game.
He mentioned
to her that it would cost R15 to repair and the
complainant then departed, running. Throughout this time LB was at
the tap pouring
water.
[31]
K testified that she had heard about the
rape allegation from her mother sometime after that day, when LM had
visited and informed
them about this. LM had been crying and K had
spoken to Mr Botha about the allegation while the other family
members went to the
home of the complainant.
[32]
LB testified that Mr Botha was her nephew.
The complainant was the child of her uncle. She had left the kitchen
to fetch water from
the tap when the complainant arrived. Mr Botha
was sweeping near the tap. The child requested him to download Whats
App on her
grandmother’s phone. He let go of the broom and took
the phone from the child, who ran to play near the vehicle with K and
A. K and A had been playing there for a long time before the
complainant’s arrival. Mr Botha fixed the phone in his room.
While he did so the witness took the water into the house. She then
proceeded to clean the yard. Mr Botha emerged from his room
after
fixing the phone. He went to the tap and called the complainant, who
was behind the vehicle, to him. She ran to where he
was and received
the phone, before running out of the yard on her way home.
[33]
LB indicated that K and A had returned from
school, eaten and washed the dishes before going to play. She was
unable to estimate
how long it had taken for the work on the phone to
be completed. She had been sweeping in the yard during that time. The
complainant
had not entered Mr Botha’s room. She estimated that
this had occurred during the first week of August, as it was
approximately
three weeks later that the child had been examined by a
doctor.
[34]
LM, a relative, had arrived one evening
crying. After a long period, she indicated that she had been called
to the complainant’s
homestead where she had been told that Mr
Botha had raped the complainant. The two ladies, accompanied by Mr
Botha’s father,
had proceeded without delay to that home and
made inquiries. LM had spoken on behalf of her and her brother but
none of the three
had said much, as they were in shock and had not
expected Mr Botha to have done such a thing. The complainant’s
grandmother
showed them her panties. The child could not tell them
who had raped her as she was crying. The child’s grandmother
then
advised them not to question the child and arrangements were
made for her to be taken to the doctor the following day. Following
that, they had been informed that the child had not been raped.
[35]
LB confirmed, during cross-examination,
that K had washed the dishes before playing in the courtyard. She
added that K loved to
watch movies and had watched a movie that
afternoon with A for approximately three hours. When the complainant
had arrived, the
other girls were playing cards behind the vehicle.
Mr Botha had fixed the phone while inside the room, and not while
standing outside.
The witness had overheard the conversation between
the complainant and Mr Botha. K was mistaken in thinking that he had
walked
to them to return the phone.
[36]
LB testified that Mr Botha was not a
problematic child. She knew him well and he was usually to be found
at home. Their bedrooms
were divided by a wall and she could hear
everything that happened and the complainant had not entered any of
the rooms on the
day in question. There had been nothing wrong with
the complainant when she left the homestead running home.
[37]
AB, a SAPS constable, and the father of Mr
Botha was the final witness called. The complainant was known to him,
her father being
his uncle. He had not been at home on the day of the
alleged incident. He had been present when LM had arrived, crying, to
report
what she had heard. He had immediately proceeded with LM and
LB to the home of the complainant. Her mother, D, was furious and
they could not say much. D suggested that the witness take the child
to the doctor and this was agreed. He had taken the complainant
and D
to a doctor in Makhanda on 3 September and a receipt confirming
payment of R400 to the doctor was accepted into evidence.
The witness
had not been present at the time the child was examined by that
doctor. A case had only been opened during October
2020.
[38]
AB testified during cross-examination that
he had had a short private talk with Mr Botha on 2 September 2020
after LM advised their
family of the allegation and they had visited
the complainant’s home. When asked, his son denied having
committed the offence
without any further explanation and the matter
was left there. He had not considered reporting the matter to the
police immediately,
but hoped or thought that the child’s
mother would do so. He had spoken more than LB or LM when they
visited the complainant’s
home after hearing of the allegation.
No explanation was given for why the child had been brought to a
doctor in Makhanda the following
day. At some point LB had said to
him that she would have known if the complainant had entered Mr
Botha’s room as two rooms
had to be passed for her to do so.
The legal position
[39]
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.
[40]
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 Mr Botha as her rapist. Section
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]
[41]
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. If
the accused’s version is reasonably possibly true
in substance
the court must decide the matter on the acceptance of that
version.
[10]
[42]
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]
[43]
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.’
[44]
The
Court’s conclusion must account for all the evidence, whether
it is found to be false, unreliable or only possibly false
or
unreliable, and the appropriate process of reasoning depends on the
nature of the evidence before the Court.
[14]
While it is necessary to critically analyse each component in the
body of evidence presented, it is also necessary to consider
the
picture as a whole.
[15]
As the
SCA held in
S
v Trainor
:
[16]
‘
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independent verifiable evidence, if any, should be weighed to
see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in its entirety.
The
compartmentalised and fragmented approach … is illogical and
wrong’.
[45]
As
the SCA confirmed in
Kotze
v S
[17]
where a trial court is faced with two mutually destructive accounts,
logic dictates that both cannot be true. In order to determine
the
objective truth of the one version and the falsity of the other, it
is important to consider not only the credibility of the
witnesses,
but also the reliability of such witness. Evidence that is reliable
should be weighed against the evidence that is found
to be false and,
in the process, measured against the probabilities. In the final
analysis the court must determine whether the
State has mustered the
required threshold proof beyond reasonable doubt.
[46]
As to the evidence of a previous consistent
statement, s 58 of the Sexual Offences Act provides that this is
admissible in criminal
proceedings involving the alleged commission
of a sexual offence. Section 59 of that Act provides that the court
may not draw any
inference only from the length of any delay between
the alleged commission of a sexual offence and the reporting thereof.
[47]
To
the extent that the defence relies on a specific form of alibi, based
on Mr Botha having been in the presence of the other children
and LB
during the time of the alleged rape, the correct approach is to
consider the alibi in the light of the totality of the evidence
and
the Court’s impressions of the witnesses. If, on all the
evidence, there is a reasonable possibility that the alibi evidence
is true, it means that there is the same possibility that the crime
has not been committed.
[18]
Neither evidence implicating the accused, nor exculpatory evidence,
must be looked at in isolation.
Analysis
[48]
It may be accepted that the complainant’s
mother discovered a brownish discharge, containing blood, on her
daughter’s
panties. MK, the child’s grandmother, was
approached. The complainant subsequently reported to her that she had
been raped
by Mr Botha on the day that MK had sent her to him to
attend to an issue with her phone, that this was painful and she had
cried
and that Mr Botha had put a hand over her mouth. After Mr
Botha’s family had been summoned, it was agreed that his father
would take the complainant and her mother to a doctor in Makhanda the
following day. Documentary evidence of the receipt of payment
from
that visit, as confirmed by AB, confirms that this was on 3 September
2020. Given that it is common cause that this doctor’s
visit
occurred the day after the report, it must be accepted that the
complainant reported the alleged rape on 2 September 2020.
MK was
therefore mistaken in her testimony that this had only occurred on 6
October 2020. It is unclear as to precisely when the
complainant was
sent to Mr Botha with the phone. It may be accepted that this
occurred sometime during August 2020.
[49]
Despite being mistaken in relation to the
date, MK made a favourable impression as a witness. She readily
conceded, during cross-examination,
that she might have erred in that
respect, and that she could not remember that aspect for certain. She
also avoided embellishing
her testimony to favour the complainant’s
version, indicating that she could not confirm the precise period
that the complainant
had been at Mr Botha’s home. That
uncertainty is unsurprising given that the event would have been
unremarkable in her memory
at the time. She listened to the questions
carefully and provided thoughtful responses. It was clear that she
could recall asking
the complainant, upon her return, why she had not
returned quickly. Other than disagreeing that this could have been a
fifteen-to-twenty-minute
period, she could not provide further
detail.
[50]
The crux of the matter is to determine what
occurred during the time that the complainant was at the home of Mr
Botha, even accepting
that this may have been only for a relatively
short period of time. On her version, she was called by Mr Botha to
fetch the phone
after she had given it to him and waited outside.
When she went to him, he raped her, covered her eyes and mouth and
threatened
to kill her if she discussed what had occurred. Mr Botha
denies this, and K and LB, who claim to have been present throughout
the
duration of the complainant’s visit, support his version of
events. On that version, the complainant never entered his room
that
day and was not raped by him.
[51]
The complainant was a confident witness for
a child of her age. She spoke in short sentences. She answered the
questions put to
her clearly and created the impression of a witness
speaking truthfully. She displayed reasonable powers of observation,
recollection
and narration considering her age. She was able to
explain, for example, the reason why she had not wanted to tell her
mother what
had occurred, and why she had preferred telling her
grandmother. She recalled various details of her experience,
including how
she had knocked on different doors, her interaction
with Mr Botha at the time she gave him the phone, where she had stood
and what
had subsequently occurred, including that she had been asked
to bend forward, and that her eyes and mouth had been closed by Mr
Botha during that time.
[52]
There are two internal inconsistencies in
her evidence. The first relates to her confusion as to when she had
reported the matter
to her grandmother. The complainant appeared to
conflate the day of the incident with the day she reported the matter
to her grandmother.
Given MK’s testimony, it must be accepted
that these events occurred on separate days. At times the complainant
was able
to appreciate that, denying during cross-examination that
she had returned home after the incident and reported the matter to
MK.
Prior to that denial, however, and as the earlier quotation from
the evidence led reflects, she appeared uncertain on the point.
When
her testimony resumed briefly, some weeks after it had been
interrupted during cross-examination, she conceded that she may
have
erred in this respect, demonstrating consciousness of the duty to
speak the truth.
[53]
The second issue stems from her remark,
during brief re-examination and further cross-examination, that she
had seen Mr Botha sweeping
with a broom near the doorway to his
bedroom when she arrived, which is similar to that aspect of his
version of events. This is
a contradiction of her evidence in chief,
where she testified that she had knocked on various doors before she
had seen Mr Botha,
who had opened one of the doors. She had also
denied seeing Mr Botha sweeping near the tap on one of the pictures
she had been
shown during her initial cross-examination, or that she
had met him there.
[54]
The
complainant remained convinced, however, that she was not mistaken as
to Mr Botha’s conduct in undressing her and raping
her, which
she repeated in her own words, and in her firm assertion that K and A
had not been present at the time. On these material
aspects she
appeared to testify honestly.
[19]
As already indicated, no adverse inference may be drawn from the
length of the delay in reporting the incident.
[55]
The
medical report and related testimony of Dr McConney corroborates the
complainant’s claim that she was raped.
[20]
Examination on 16 October 2020 confirmed that her hymen was not
intact. It had been torn and damaged and this had likely been caused
by sexual penetration, even if the visible infection may have been
caused by insertion of a different dirty object, such as a finger
containing bacteria following a traumatic event which damaged the
inside of the vagina.
[56]
Mr Botha offered the following basic denial
of the allegations. He had taken the phone from the child and gone to
his bedroom to
fetch his phone and transfer Whats App to the phone
she had brought, while she played with the other two girls. He was
unable to
estimate how long it had taken for him to download the
application. He seemed to recall clearly that A and K had been inside
the
house at the time the complainant arrived, and would not have
heard her request to him related to the phone. He heard them ask her
about the reason for her visit while he went inside and could then
hear them speaking and see them playing cards quietly. When
asked how
this was possible given that his room did not have a window facing
that area, he explained that he had taken the phone
out of his room
and downloaded the Whats App while outside. He had no difficulty in
describing the movements of his aunt throughout
this time. She had
been in the kitchen, exited, noticed that the complainant had brought
him the phone, proceeded to the tap to
pour water and, after the
application had been downloaded and he had called the complainant,
had proceeded back into the house,
so that the complainant would have
been visible to her for most of the time.
[57]
Mr Botha did not make a favourable
impression as a witness. He initially tried to convey the impression
that the complainant was
a regular visitor to his home, frequently
arriving to play a variety of games with his sister and cousin’s
sister. This was
also the version that had been put on his behalf. He
indicated during cross-examination that this occurred approximately
twice
per week, before confirming that the last occasion she had
visited was during December 2019, when she had visited in the company
of adults, some seven months before the alleged incident. He then
suggested that the children would play together in the street,
rather
than in the courtyard of the homestead.
[58]
His plea explanation, the version put to
the complainant on his behalf and the testimony of the other
witnesses for the defence
suggested that he had attended to his work
on the phone inside his room, while the complainant had been waiting
or playing outside,
as reflected in the following extract:
‘
His
evidence is that you met on the side of the tap and he took the phone
and went inside to fix it while you waited around this
area.
No.’
[He] will say that while
you standing around here, A and K came and asked you what you were
doing and you said you brought a phone
from your grandmother.
No.
[59]
In response to questioning from the
Court, the version changed. He had heard them speaking and seen them
playing not from inside
his room but because he had merely fetched
his phone from his room and downloaded Whats App while standing
outside.
[60]
He testified with some conviction as to the
movements and activities of A, K and LB, despite being focussed on
the complaint, fetching
his phone and downloading the application.
Yet he was unable to answer a question, or even provide an estimate,
as to how long
the children had played cards together while he was
busy with the phone, seemingly standing approximately 25 metres away
from them.
[61]
The impression created was of a witness
attempting to tailor the evidence to suit his own narrative,
affecting the credibility of
the testimony and the weight to be
attached to it. As will become evident, the version offered finds
little reliable support in
the evidence of K and LB. On K’s
evidence the card game was already on the go when the complainant
arrived. The phone was
given to Mr Botha who went inside while the
children played outside for approximately 15 minutes, before he
returned and handed
it to the complainant. While known to the other
children, it must be accepted that the complainant was not a regular
visitor to
the homestead so that the children would have paid some
attention to her arrival. There was no answer to why it had been
necessary
to ask the complainant the reason for her visit, given that
she had allegedly already explained this to Mr Botha within earshot
of K.
[62]
In addition to that issue, a fanciful
recollection of her prior movements on the day in question, including
eating, doing homework
and writing an isiXhosa story, was added.
Given the length of time that has elapsed, and the likely period
between the complainant’s
visit and the reporting of the
incident, there was no reason for such detail to be remembered.
Indeed, the witness was unable to
offer any explanation for her
ability to provide these descriptions. These matters combine to
create the sense of a fabricated
version of events, told by an
unreliable witness who, it must be accepted, was not present at the
time of the incident.
[63]
The sense of fabrication is even more acute
in respect of the testimony of LB. She is related to both the
complainant and accused
and, had she been present, was well-placed to
provide clarity as to the events of that day. On her version, and
that of Mr Botha
and K, she witnessed the entire duration of the
complainant’s time at the homestead and could confirm that Mr
Botha had been
falsely implicated. Yet her conduct when the incident
was reported to the family on 2 September 2020, both at her home and
later
at the home of the complainant, does not align with that of a
senior family member who was witness to the complainant’s
visit.
Given that it must be accepted that the complainant only
rarely visited Mr Botha’s homestead, and that there was a
special
reason for the visit, LB ought to have recalled the kind of
details she offered during her testimony. Confoundingly, however, she
suggested that her shock at the time prevented her from disclosing
those same details a few weeks after the visit when LM tearfully
informed her family of the rape allegations. Even when face-to-face
with MK, an elder in the complainant’s house, she remained
silent. This is diametrically opposed to what would have been
expected by a person in her position, casting serious doubt on her
presence at the time of the complainant’s visit, and affecting
the reliability of her testimony, particularly the ability
to have
observed the events and the integrity of the recollection.
[64]
That
aside, her testimony offered a mixture of Mr Botha’s original
version and K’s evidence. Her version contained an
improbable
recollection of details of K and A’s activities on the day.
That version changed blatantly during cross-examination,
to include
their watching of a movie for a three-hour period. LB’s
demeanour, when pressed, was not that of a witness speaking
honestly.
She presented as a person reluctant to believe that Mr Botha could
have committed such an act, because of her previous
experience of him
as a good person. She appeared unconvinced by her own version of
events, adding, unnecessarily given her version,
that the thin walls
between her bedroom and that of Mr Botha’s made it possible for
her to hear everything that occurred
in his room. On occasion she was
unable to respond to questions and appeared shaken when it was put to
her that she was fabricating
her evidence. As already indicated, it
was not even put to the complainant that LB had been present
throughout. In all these circumstances,
her testimony, stands to be
rejected.
[21]
[65]
The complainant is a young child who was a
single witness to the alleged rape. Her evidence must be treated with
the necessary caution.
On my assessment, she presented as a credible
witness who testified clearly and truthfully on the material aspects
of what had
transpired, and what had been reported to her
grandmother. The evidence of the details of her report, which accords
with her testimony,
proves consistency. There is nothing to suggest
that she had any reason to falsely implicate Mr Botha, who was known
to her and
a relative.
[66]
The
two contradictions highlighted are of the kind that are to be
expected in the evidence of a young child testifying many months
after the events in question occurred. As the Court held in
S
v Sauls and Others
,
[22]
it would have been remarkable if there were not flaws in such a
witness. The first contradiction related merely to the time of
the
report to MK, rather than the content of the report, the description
of what occurred or the identity of the perpetrator. The
second
contradiction related to the complainant seeing Mr Botha sweeping
outside his bedroom door. Even though this only emerged,
somewhat out
of the blue, during re-examination, and following a question
unrelated to the events on the day, this a more serious
shortcoming
in the evidence and must be considered as such. The complainant
seemingly became confused, adding that she had seen
him outside when
he had been called by a grandmother. When counsel attempted to
ascertain whether her confusion now extended to
material aspects of
her testimony, however, she remained firm and clear. This, coupled
with the context in which the contradiction
arose, combined with the
usual appreciation of the realities of child witnesses testifying
about traumatic events that occurred
some time ago, must soften the
deficiency. The SCA has confirmed that such contradictions do not
automatically warrant the conclusion
that the complainant was an
unreliable witness.
[23]
Applying the necessary caution, it remains apparent that the
complainant’s evidence remained satisfactory and spoken
truthfully
in all material respects.
[67]
Despite
this assessment, it remains necessary to consider the probabilities
of the case in conjunction with the assessment of the
merits and
demerits of the State and defence witnesses in determining the
outcome of criminal proceedings.
[24]
It is the complainant’s version of events, aside from her
belated suggestion that she had seen Mr Botha sweeping, that
convinces,
as supported by the doctor’s report of her injuries.
The probabilities also favour that she was threatened and afraid, so
that there was some delay in her reporting the incident.
[25]
Mr Botha’s evidence contained external contradictions with what
was put on his behalf, and lacked candour, negatively affecting
the
assessment of the credibility of his evidence. It goes without saying
that he held a natural bias to testify in a manner that
would serve
his interests, as did the main witnesses who supported him.
[68]
Considering the totality of the evidence,
and my impression of those witnesses and evaluation of their
evidence, there is no reasonable
possibility that the testimony of K
and LB was true. On my assessment, Mr Botha’s guilt has been
established beyond reasonable
doubt and his version, specifically his
denial that he perpetrated the rape, is, in the circumstances, not
reasonably possibly
true, when considering the merits and demerits of
the evidence presented on both sides, and the probabilities of the
matter.
Order
1.
The accused, Mr Philani Aiden Botha, is
found guilty of the crime of rape as charged.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:13-17
June; 16-17 August; 17-18 October 2022;
Delivered
:
21 October 2022
Appearances:
Counsel
for the State:
Adv M. Van Rooyen
Director
of Public Prosecutions
Makhanda
046 602
3000
Counsel
for the Accused: Adv M. Nguta
Sandton
Chambers
Instructed
by:
Mgangatho Attorneys
100 High Street
Makhanda
046 622 2206
[1]
Act
32 of 2007.
[2]
S
158(2)(
a
)
and ss 170A(1) and (3) of the Criminal Procedure Act, 1977 (Act 51
of 1977).
[3]
S v
Manda
1951
(3) SA 158
(A) at 162E-163F. See
S
v Artman and Another
1968
(3) SA 339
at 340H.
[4]
Ibid.
Also see
S
v Dyira
2010
(1) SACR 78
(E).
[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
ibid.
[9]
S
v Van Aswegen
2001
(2) SACR 97
(SCA), with reference to
S
v Van der Meyden
1999 (2) SA 79 (W).
[10]
S
v Shackell
2001
(2) SACR (SCA) at 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
op
cit fn 9. For an application of
Stellenbosch
Farmers’ Winery Group and Another v Martell et Cie and Others
to resolving two conflicting versions between the State and the
accused in criminal proceedings, see
Kuhlane
v S
[2020]
ZAECGHC 124 para 10 and following.
[13]
S v
Chabalala
2003
(1) SACR 134
(SCA) para 15. Also see
S
v Dlamini
2019
(1) SACR 467
(KZP) para 25.
[14]
Van
der Meyden
op
cit fn 9 at 81I - 82E.
[15]
S
v Mbuli
2003
(1) SACR 97
(SCA) para 57.
[16]
S
v Trainor
2003
(1) SACR 35
(SCA) para 9.
[17]
Kotze
v S
[2017]
ZASCA 27
para 17.
[18]
R
v Biya
1952
(4) SA 514 (A).
[19]
See
Vilakazi
v The State
[2015]
ZASCA 103
para 18, with reference to
Woji
v Sanlam Insurance Co Ltd
1981 (1) SA 1020 (A).
[20]
See
Rugnanan
v S
[2020] ZASCA 166
para 24.
[21]
See
S
v Oosthuizen
1982
(3) SA 571
(T). On the effect of this rejection of testimony, see
Rex
v Weinbert
1939 AD 71
80;
S
v M
2006
(1) SACR 135
(SCA) para 281.
[22]
S
v Sauls and Others
1981
(3) SA 172
(A) at 180H.
[23]
Vilakazi
v The State
[2015]
ZASCA 103
para 18.
[24]
S
v Singh
1975
(1) SA 227
(N) at 228, cited with approval in
S
v Guess
1976 (4) SA 715 (A).
[25]
See
Vilakazi
v The State
op
cit fn 23 para 19.