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[2021] ZAKZPHC 13
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Sibiya v S (AR03/17) [2021] ZAKZPHC 13 (11 February 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR03/17
In
the matter between:
NTOKOZO
SIBIYA
APPELLANT
and
THE
STATE
RESPONDENT
This
appeal was disposed of without the hearing of oral argument, in terms
of section 19(a) of the Superior Courts Act 10 of 2013.
ORDER
On
appeal from the Regional Court, Estcourt:
The
appeal against the appellant’s conviction and sentence is
dismissed.
JUDGMENT
Chetty
J (Koen J concurring)
[1]
The appellant, a 31 year old male, was charged with one count of rape
in which the complainant was under the age of 16. He was
legally represented at his trial and pleaded not guilty to the charge
against him, denying all the allegations in the charge sheet. After
assessing the evidence before it, the trial court convicted
and
sentenced the appellant to life imprisonment. This appeal comes
before this Court in terms of
s 309
of the
Criminal Procedure Act 51
of 1977
.
[2]
The complainant, who was born on 6 January 2008,
testified with the assistance of an intermediary in terms of
s 170A
of Act 51 of 1977. At the time of the incident on 20 July 2015, the
complainant was seven years’ old. She testified that
after
school she normally waits at a store near the taxi rank, from where a
fruit and vegetable vendor trades. The vendor, referred
to by the
complainant as ‘M[....]’s mum’, would generally
take the complainant back to her home, after which
her mother would
usually return from work. On the day of the incident the
complainant’s mother was late in arriving home
and the
complainant ventured towards the Pick ‘n Pay shopping centre in
Estcort in search of her mother. While doing so she
was accosted by
the appellant, who grabbed her by the hand and took her to red brick
building where he removed her underwear and
made her lie on the
floor. He removed his trousers and undressed himself, after which he
inserted his penis into her vagina. During
the course of the attack,
the complainant testified that the appellant covered her mouth when
she attempted to scream.
[3]
While on top of the complainant, the appellant was
interrupted when a passerby, Mr Vukani Emanuel Mgoza, who is a
driving school
instructor, came across the appellant and shouted out
to him ‘What are you doing?’ The appellant was startled
by the
appearance of Mr Mgoza on the scene and attempted to run away.
Mr Mgoza, who was armed with a firearm, warned the appellant not
to
flee. A struggle then took place in which the appellant
resisted the attempts by Mr Mgoza to restrain him. Eventually,
with the assistance of a gentleman to whom he was giving driving
lessons at the time, Mr Mgoza overpowered the appellant and managed
to restrain him. Mr Mgoza testified that the appellant was naked from
the waist down at the time when he apprehended him. The complainant,
according to him, was also naked from the waist down. At the time
when he confronted the appellant on the scene, the appellant
was
lying on top of the complainant as if he was having sex with her. The
police were summoned to the scene, after which the appellant
was
arrested.
[4]
The evidence of Mr Mgoza is important as he
testified that in the course of his work as a driving instructor on
that day, he was
travelling towards Connor Street in Estcourt when he
noticed an adult forcibly pulling a child by the hand, with the child
visibly
resisting and crying out aloud. This caused Mr Mgoza to
become suspicious, causing him to turn his vehicle around with the
intention
of ascertaining whether the child in the company of the
appellant was safe. He denied that he had removed the appellant’s
trousers during the course of their struggle and was adamant that
when he confronted the appellant, both he (the appellant) and
the
complainant were naked from the waist down. At the time when he
initially saw the complainant, he recalled that she was wearing
pink
track pants and a top.
[5]
The state led the evidence of Dr Badul, who
has been in practice for 28 years, and who has vast experience in
examining patients
who have been the victims of sexual assault. She
testified that on average in the area of Estcourt, she examines
approximately
20 patients per month. She confirmed her findings and
the nature of injuries sustained, as recorded on the J88.
According
to her notes on the J88, the complainant informed Dr Badul
that an unknown man ‘tried’ to penetrate her with his
penis.
Doctor Badul said the following in her testimony with regard
to her examination of the complainant:
‘
Emotional
state and mental state, the child was very distraught and crying.
Gynaecological history… this child was
obviously seven
years old and she had not reached her menarche as yet. Gynaecological
examination, points of significance, she
was definitely at Tanner
stage 1 for breast development and pubic hair development. Abrasions
were noted at both the labia minora
and labia majora. The fossa
navicularis was red and swollen. Her hymen was lunar by 0.7cm and the
hymen was swollen. So a red swollen
hymen and the vestibule, the
vestibule area, and abrasions to the labia minora and majora are very
suggestive of forceful penetration.’
[6]
In commenting on the complainant’s injuries, Dr Badul testified
that her findings were suggestive of forceful penetration. Insofar as
the suggestion that the complainant’s vagina had not
been
penetrated, Dr Badul was confident, based on her examination and her
experience, that the injuries sustained by the complainant
were
consistent with a sexual assault and that penetration had occurred
beyond the labia minora. She pointed out, given the
age of the
complainant at the time of the incident, that young children do not
fully comprehend anatomical terminology. With regard
to the term
penetration, the doctor testified that the complainant ‘does
not even understand her body. She does not
understand these
terms.’
[7]
Constable Duma testified that he had been patrolling in the area when
he received a report over his police radio. He arrived at the scene
and found a man naked and a child wearing pink clothing. He
confirmed
that Mr Mgoza reported to him that he had seen the man pulling the
child by her hand, while all the time she had been
resisting. The
police officer described the area where the incident took place as an
electrical sub-station, which is borne out
from the brick structure
reflected in the photographical album which formed part of the
exhibits. It also emerged that although
a DNA analysis was
conducted on certain exhibits, these were inconclusive. This
concluded the evidence for the State.
[8]
The appellant testified in his defence that on the day in question he
was returning from work and met the complainant near a sports field.
As it was getting dark, he believed that she may have been
lost and
was unable to find her mother. Concerned for her safety, he took her
hand and said that he intended taking her to the
police. The
appellant admits that the complainant cried as he forcibly pulled her
hand, which is consistent with her version.
He contends that
the witness, Mr Mgoza, appeared on the scene and produced a firearm
asking what he was doing with the complainant.
He states that
he was thereafter assaulted and, as he was not wearing a belt, his
trousers fell down during the struggle. He was
unable to provide any
explanation as to why the police officer as well as Mr Mgoza
testified that he was naked at the time when
he was arrested, despite
his insistence that he still had his underwear on and only his
trousers fell below his knees. He
denied that he raped the
complainant or that he was found on top of her as testified to by the
State witnesses. Although it was
never put to Mr Mgoza or the police
officer when they testified, in his evidence the appellant accused Mr
Mgoza and the police
officer of collaborating or fabricating their
evidence to falsely implicate him. He was unable to provide any
explanation as to
why they would do so, especially as he did not have
any problems with either of these witnesses before the incident. This
concluded
the evidence for the defence.
[9]
In its assessment of the evidence, the trial
court took into account the version of the complainant who stated
that the appellant
tried to insert his penis into her vagina. The
court further took into account the medical evidence by Dr Badul, who
confirmed
that in her expert opinion, penetration did in fact occur
beyond the labia minora. Apart from the evidence of the
complainant
and Dr Badul, the evidence of Mr Mgoza was credible and
reliable. He testified what he had observed from the time that
he
saw the appellant pulling the complainant by the arm until he
encountered him laying naked on top of the complainant. The trial
court was satisfied that evidence of even the slightest penetration
was sufficient to complete an act of sexual intercourse. The
evidence
of Dr Badul of the complainant’s hymen being red and swollen,
together with the evidence of the complainant, was
sufficient for the
trial court to conclude that the State proved its case beyond
reasonable doubt.
[10]
It
was contended on behalf of the appellant that the evidence of Dr
Badul was that the complainant herself was uncertain as to whether
or
not she was penetrated. The evidence of Dr Badul was unequivocal,
that from a medical perspective, penetration of the complainant
had
taken place. Her evidence could not be gainsaid. She is a
highly experienced medical officer and provided an insight
into why
young children, like the complainant, would provide the type of
responses they give when asked to describe the nature
of the alleged
sexual assault. Where a court is dealing with young, vulnerable
witnesses, as in the present case, the proper
approach is set out
in
S
v Vilakazi
2009
(1) SACR 552
(SCA)
:
‘
[21]
The prosecution of rape presents peculiar difficulties that always
call for the greatest care to be taken, and even more so
where the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all
the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding
and careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and
many prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important.’
The
complainant’s evidence, in my view, was highly persuasive.
[11]
The trial court correctly weighed the evidence presented by the State
– that of the complainant and Mr Mzoga,
together with the
independent and objective assessment by Dr Badul - against the bare
denial by the appellant. Two state
witnesses, apart from the
complainant, stated that the appellant was found naked at the scene.
They had no reason to falsely
implicate the appellant.
[12]
I am not persuaded by the contention on behalf of the appellant that
the evidence before the
trial court, at best, established an
attempted rape. The evidence of Dr Badul was unequivocal –
the complainant was
raped, even if she (the complainant) herself may
not have thought so. In
S v
Ramulifho
2013 (1) SACR 388
(SCA),
para 11, the court said the following in relation to medical
evidence:
‘
In
every rape case the objective evidence provided by the medico legal
examination of the complainant is essential to determine
where the
truth lies. This evidence must always be carefully scrutinised by the
presiding judicial officer, as the examination
and the injuries found
will usually determine the outcome of the trial. If the results of
the examination show that a sexual assault
has taken place, the
accused’s denial of intercourse will usually be rejected. If
the results of the examination are inconsistent
with the
complainant’s description of a sexual assault, the accused’s
denial of intercourse will usually be accepted
as reasonably possibly
true
.’
[13]
I am unable to find any misdirection on the part of the trial court
in accepting the evidence
of Dr Badul that her medical examination of
the complainant established that penetration had taken place.
As our courts have
articulated in numerous judgments,
once
a detailed and critical examination of all the components of evidence
has been done, a court must step back and observe the
mosaic of
evidence as a whole (see
S
v
Shilakwe
2012 (1) SACR 16
(SCA), para 14).
The version of the appellant that he was pulling or dragging the
complainant to a police station is so highly
improbable that the
trial court correctly rejected this explanation as being false.
In addition, there is nothing to gainsay
the evidence of Mr Mgoza
that he saw the appellant forcibly pulling the complainant. This
aroused his suspicion that she was being
taken against her will. The
evidence against the appellant was overwhelming. I am satisfied that
the trial court properly assessed
the evidence before it and that
there is no basis for this court to interfere with the conviction of
the appellant on the count
of rape.
[14]
With regard to the sentence of life imprisonment imposed by the trial
court, it was submitted
on appeal that the court
a quo
gave
insufficient attention to the personal circumstances of the
appellant, including that he was 32 years’ old at the time
of
his conviction; that he had already spent eight months in custody and
that there were no
severe
physical injuries sustained by the
complainant. The court a quo however gave due attention to the
personal circumstances
of the appellant and weighed these against the
personal circumstances of the complainant, including her Victim
Impact Statement
containing a drawing of a little girl with tears
running down her face. The court a quo paid heed to all of the
guidelines
pertaining to sentencing in such cases and found that
there were no substantial and compelling circumstances justifying a
departure
from the prescribed sentence of life imprisonment.
The gravity of the offence outweighs the personal circumstances of
the
appellant. I am unable to fault the trial court in any manner as
to its approach in arriving at the decision to impose life
imprisonment;
there is no evidence of any misdirection on its part.
[15]
In the result, I make the following order:
The
appeal against the appellant’s conviction and sentence is
dismissed.
Chetty J
Heads
of argument prepared by:
For
appellant:
P Andrews
Instructed
by: Legal Aid
South Africa
PIETERMARITZBURG
For
respondent: R du Preez
Instructed
by: Director of
Public Prosecutions
PIETERMARITZBURG
Date
of Appeal 5 February 2021
Date
of judgment 11 February 2021