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[2021] ZAKZPHC 45
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Mhlongo v S (AR504/19) [2021] ZAKZPHC 45 (30 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
-
NATAL
DIVISION, PIETERMARITZBURG
Case
No
:
AR504/19
In
the matter between
:
SIBUSISO
DERICK
MHLONGO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from the Regional Court
,
Eshowe
:
The
appeal against conviction and sentence is dismissed.
JUDGMENT
Chetty
J (Lopes J concurring)
[1]
The appellant was charged in the
Regional Court
,
Eshowe
of having raped the
complainant
on
diverse occasions between 2016
and 2017.
The complainant is referred
to
in
this
judgment
by
her
forename
,
'
Nosipho
',
in
order
to
protect
her i
dentity and in
light
of her being 11 years old at the time of
the commission of
the
offences.
The charge sheet
was
framed
in
terms of
s 51
,
Schedule
2
,
Part 1
of
the
Criminal
Law Amendment Act 105 of
1997 ('the
Amendment Act')
in
terms
of which the appellant was alerted
to the applicability of life imprisonment
in
the event of his
conviction
as the complainant was
under
the age of 16. The appellant pleaded not
guilty to the charge. He was legally represented at his trial. After
considering the evidence
before
it,
the
trial court convicted the appellant as charged
,
and sentenced him to
life
imprisonment
on 15 May
2018.
[2]
The matter
comes
before this
court
as an automatic appeal
in
terms
of s 309 of
the
Criminal Procedure Act 51 of 1977
('the
Act
'
).
[3]
The facts of the matter are
succinctly
captured in the judgment of the court a
quo
.
In as
much as this appeal lies against both conviction and sentence
,
it
is
necessary to briefly have regard to those facts
.
The compla
i
nant
,
Nosipho
,
testified with the assistance of an
intermediary appointed by the court in terms of s 170A of the Act.
When the matter came before
this court on 19 February 2021
,
an
order
was
issued
adjourning
the
matter
sine die
with
a direction that those representing the appellant
"
deal
with the matter
raised
by
the State regarding the appointment of an intermediary
,
Ms M
.
S.
Zondiâ.
.
It
is contended on behalf of the appellant that
the
trial court irregularly appointed the
intermediary
in
as
much as she did not take the oath; her full details were not
recorded
,
nor
were her
qualifications
and it was not ascertained whether or
not she had consulted with the complainant prior
to
her
appointment.
Counsel
relied heavily on
the
decision in
S
v Booi
2005 (1) SACR 599
(8).
That
decision was departed from by Gorven J
in
S
v
Ndokwane
2012
(1)
SACR
380
(KZP).
[4]
In
determining
whether
there
was
an
irregularity
in
the
appointment
of
the
intermediary
,
the
starting
point is the provisions of s 170A(1)
which
states that:
'
Whenever
criminal proceedings
are pending before any court and
it
appears to such court that it would
expose any
witness
under
the biolog
i
cal
or mental age of
18 years to
undue
mental stress or suffering
if
he or she testifies at such proceedings
,
the court may
,
subject to
subsection
(4)
appoint
a
competent
person
as
an
intermediary
in
order
to
enable
such
witness to give his or her evidence
through
that intermediary.
'
[5]
The
section
provides
protection
for
child witnesses, by
shielding
them
from
undue
mental stress or secondary
trauma
.
The
Constitutional
Court
i
n
Director of Public
Prosecution
s
,
Transvaal v Minister for Justice and
Constitutional Development and Others
2009
(4)
SA 222
(CC)
recognised
that
a
child witness
must
be
protected from having
to endure
the
mental
anguish
of
testifying
in the
presence
of
a
person
accused.
'The
best
interests
of
the
child'
is
the
guiding
principle
in
determining
whether to appoint
an
intermediary. Ngcobo
J
held
at paragraph 108 that:
'
.
.
.
it must
be accepted that a
child
complainant
in a sexual offence who testifies without the assistance of an
intermediary faces a high risk
of
exposure to undue mental stress or
suffering. The object of s
170A(1)
read
together with s 170A(3) is precisely to prevent this risk of
exposure. It does this by making provision for a child to
testify
through the
intermediary
...
'
[6]
In
Kerkhoff
v Minister of Justice and
Constitutional Development
2011
(2)
SACR
109
(GNP) para [21] the point was emphasised that the enquiry
to
appoint an
intermediary
is
not concerned with whether the child is
competent
to give
evidence
or whether the child's evidence
is
admissible,
credible
or reliable. Moreover
,
the
procedure ensures that
the
trial court is
in a better position
to
receive the
evidence
from
a vulnerable witness in a manner
where
it
is
freely presented.
In so doing, such
evidence
is
more
likely
to
be
better understood by the court
,
enhancing
the
fairness of the
trial.
[7]
I
n
considering
the manner in which the intermediary was
appointed,
it bears
noting
that
the application in
terms
of
s170A(1)
was
not
opposed by
the
defence
.
It is correct
that
the court
proceeded
to
appoint
Ms
Zondi as
an
intermediary
without
receiving
any
evidence
from her
as
to her qualifications or suitability to
serve
in
that capacity, save for the recordal that she was a member of
staff
at
the
Magistrate
'
s
Court in Eshowe
.
The
grounds of irregularity contended for
by
the
appellant
fall
to
be
dismissed as these concerns are
adequately
satisfied by the provisions
of
s
170A(4) which
provides
that:
'
(4)(a)
The Minister may by notice in the
Gazette determine
the
persons
or
the category
or
class of persons who are competent to be
appointed as
intermediaries
.
(b)
An
intermediary
who is not
in
the full-time employment of the State
shall
be
paid
such
travelling
and
subsistence and other allowances in respect of
the
services rendered by
him
or her as the Minister
,
with
the
concurrence of
the
Minister
of
Finance,
may
determine.
(5)(a)
No oath
,
affirmation or admonition
which
has
been administered through an
intermediary in
terms
of section
165
shall
be
invalid
and
no evidence which has
been
presented
through an intermediary shall
be
inadmissible
solely on account of the
fact that such intermediary was not competent to
be
appointed as an
intermediary
in
terms
of
a regulation
referred
to
in
subsection
(4)
(a)
,
at the
time
when
such
oath, affirmation or admonition was administered or such evidence
was
presented
.
(b)
If
in
any proceedings
it
appears to a
court
that an oath
,
affirmation or admonition was
administered or that evidence
has been
presented
through an
intermediary
who was
appointed in good faith but
,
at the time
of
such appointment
,
was
not
qualified
to
be
appointed as an intermediary in
terms
of
a regulation
referred to in
subsection
(4) (a),
the
court must make a
finding
as
to
the
validity of that oath,
affirmation
or
admonition
or
the
admissibility of
that
evidence
,
as
the case
may
be
,
with
due
regard to- (i) the reason
why
the intermediary
concerned
was
not
qualified
to be
appointed
as an intermediary
,
and
the
likelihood
that
the reason
concerned will
affect
the reliability of
the
evidence
so presented adversely;
(ii)
the
mental stress or suffering which
the
witness, in
respect of
whom
that
intermediary
was appointed
,
will
be
exposed
to if
that
evidence
is
to
be presented anew
,
whether
by
the
witness
in person or through
another
intermediary
;
and
(iii)
the likelihood that
real and substantial
justice will
be
impaired if
that
evidence
is
admitted.
'
[8]
In
the result I am satisfied that no grounds exist
,
on record
,
that impugn the appointment of Ms Zondi
as an intermediary or that any
'
deficiency'
in
her
appointment
invalidates the testimony of the complainant.
[9]
It
was
further contended that the failure of the trial court to admonish the
child witness made her evidence less reliable
,
and
infr
i
nged
the provisions of
section
164
of the Act
,
read
with sections 162 and 163
.
In
S v Raghubar
2013
(1) SACR 398
(SCA) the court considered the position where a child
witness had not been admonished by the court to tell the truth
.
The Court referred to
Director
of Public Prosecutions
,
Transvaal
v Minister of Justice
and
Constitutional Development
(para
166) where Ngcobo J stated:
'
(T
)
he
evidence of a child who does not understand what it means to tell the
truth is not reliable
.
It
would undermine the accused
'
s
right to a fair trial were such evidence to be admitted
.
To my mind
,
i
t does not
amount to a violation of
s 28(2)
to
exclude
the
evidence
of such a
child
.
The
risk of a
conviction
based on unreliable
evidence
is
too
great to
permit
a c
hild who does not understand
what
it
means to
speak the
truth
to
testify
.
This would
indeed
have serious consequences
for the
administration
of justice
.'
[10]
In
Raghubar
the
court held
that
if
a
child
does
not have the ability to distinguish between truth and untruth, the
child is then
not
a
competent
witness
"
It
is
the duty
of the presiding
office
r
to
satisfy
himself
or
herself
that
the
child
can
distinguish
between
truth
and
untruth. The court can also hear
evidence as to
the
competence
of the child to testify
.
Such evidence
assists
the
court in
deciding
(a) whether the
ev
i
dence
of the child is to be admitted, and (b)
the
weight
(value)
to
be
attached
to
that
evidenc
e
.
.
The
maturity and understanding of the
particular child must be
considered
by
the
presiding judicial
officer,
who must determine whether
the
child
has
sufficient
intelligence
to
testify
and a
proper
appreciation
of the duty
to
speak
the
truth
.
The court may not merely accept
assurances of competency
from
counsel.
The
language
used
in
all
three
sections
is
perempto
r
.
y
"
Raghubar
,
para 5.
[11]
Applying the dictum
in
Raghubar
to the
facts
of the present case
,
it is apparent that
the
child
witness
was questioned by the court
,
through the assistance of the
intermediary, with regard to her age; date of birth
,
the school that
she
attended
and the grade she was presently
in.
The
tria
l
court continued to then ascertain
whether she understood the difference been truth and lies
,
and
the
sanction that would follow if
she
failed to tell the truth. Neither the
state
nor
the
defence
expressed
any
dissatisfaction with the questions posed by the presiding magistrate
and the defence expressly remarked that it had
"
no
issues with regard
to
her
competency
".
[12]
Accordingly I am satisfied
that
the
complainant was properly admonished
to
speak the
truth
and the trial court cannot be faulted
for
finding
that
she was competent
to
testfify
in the proceedings. There was consequently no infringement of section
162-164
of
the Act.
[13]
I now turn to deal with the conviction of
the
appellant
which
the court a quo found to have been
proven beyond reasonable doubt. I do not propose to
repeat
the
evidence of the diverse occasions on
wh
i
ch the
complainant testified that
she
had
been raped by
the
appellant
in
the
home
which she occupied with her grandmother and the appellant
,
who is
her
uncle
.
In
order
to
accept
the
evidence of a child witness, a
court
must
proceed
with
caution
and must
be
satisfied
as
to
the trustworthiness of the evidence.
This would
be dependent on
factors
like the
'
child
'
s
power of observation
,
[their]
power of recollection
,
and
[their]
power
of
narration
on
the
specific matter to
be
testified. In each
instance,
the
capacity of
the
particular
child
is to be
investigated'
(see
:
Woji
v Santam Insurance
Co
Ltd
1981 (1)
SA
1020
(A)
at
10288).
Bearing
in mind these factors, the court a
quo
found that
the
evidence of the complainant, albeit as a
single witness, was credible in as much as she provided details of
each of the seven instances
when she
was
raped by
the
appellant between
2016 and 2017. She
was
able to
recount
the circumstances that preceded each
incident,
and
when she
tried
to
scream, the appellant covered
her
mouth
and after having completed having sexual
intercourse
with her, threatened that he would
kill
her entire family if she
reported
the
incident
to
anyone
.
[14]
The court a quo was also alive
to
the
fact that
it
is
not expected that in order to secure
a conviction, the evidence of a single witness must be
impeccable
in
all
respects
.
In this
regard
,
the court
a
quo accepted
that the
complainant was confused as to the
exact
dates
when
the
various
rapes were
committed. This
is
not
a factor which ought to have caused
the
court
to reject her evidence, particularly as the incidents occurred over a
period of two years. The
court
also
found that Nosipho
was
a
"
bright
witness", who gave evidence
"in
some detail ... even better
than
some other witnesses". It
is
well
established that a
court
of appeal will only, under special circumstances
,
interfere with the findings made in a
court
of
first
instance
,
in
particular where such failure to interfere w
i
ll
lead to a miscarriage of justice
.
In
S
v
Francis
1991
(1) SACR 198
(A) at 204C-E the following was stated
:
'
This
Court's powers to interfere on appeal with the findings of fact of a
trial Court are limited
(
R
v Dhlumayo and Another
1948
(
2
)
SA 677
(
A
))â¦
In the absence of any
misdirection
the
trial Court's conclusion
,
i
ncluding
i
ts
acceptance of D's ev
i
dence
,
i
s presumed to be correct. In order to
succeed on appeal accused No. 5 must therefore convince
u
s
on adequate grounds that the trial Court was wrong in accepting D
'
s
evidence - a reasonable doubt will not suffice to justify
interference w
i
th
its find
i
ngs
...
Bear
i
ng
i
n m
i
nd
the advantage which a trial Court has of seeing
,
hear
i
ng
and app
r
ais
i
ng
a
w
itness
,
i
t is only
i
n
e
x
ceptional
cases that this Court will be ent
i
tled
to interfere with a trial Court
'
s
evaluat
i
on
of oral testimony
â¦
'
[15]
In six
of the seven incidents when
the
appellant unlawfully had sexual
intercourse with the complainant
,
she
was a single witness.
That
alone
is
no
reason
to reject
her
version.
The safeguards
taken into
account
include the
particular
anatomical description of the
appellant
'
s
penis,
wh
i
ch
I considered
below. However,
in
respect of one incident
on 26 February
2017
her
evidence
is
corroborated
by
the te
stimony of her older sister
,
Z[...] M[...]
,
who was visiting her grandmother on the
day
.
The
complainant was taking a bath when the appellant entered the kitchen
area in which she was
,
proceed
i
ng
to cover her mouth to prevent her from screaming
.
He then laid her down before
penetrating her with his penis
.
At
this stage
,
Z[...]
went looking for the complainant
,
whom
she was told was having a bath. Z[...] waited outside the room where
the complainant was
,
and
heard a noise as if someone was crying. When Z[...] enquired
i
f
everything was in order
,
Nosipho
i
nformed
her that she was wa
i
ting
for the appellant to finish
.
The
appellant was seen
bending
over and when he was asked by Z[...] what he was doing
,
he responded that he was fetching fire
wood
.
Z[...]
was suspic
i
ous
that the appellant was hiding something from her
.
Suspecting that something was not
r
ight
,
Z[...] informed the complainant that she
was giving her an ultimatum of three days to decide whether she
wanted to confide in he
r
as
to what was happening
. I
disagree
with the submission on behalf of the appellant that the disclosure by
the comp
l
ainant
to her older siste
r
was
made under duress
.
There
i
s no
evidence to support this subm
i
ssion
.
[
1
6]
As a result of the ultimatum
,
Nosipho
confided in Z[...] that she had been raped by the appellant
.
without specifying the number of
incidents on which this had happened or the precise dates
.
Hav
i
ng
been placed in possession of this information
,
Z[...] confronted her grandmother and
informed her that Nosipho had been raped by the appellant. In
response
,
the
grandmother asked Z[...] not to say anything as the appellant would
kill her
.
On
28 February 2017 the police
,
accompan
i
ed
by soc
i
al
workers
,
arrived
at the school of the complainant after apparently being informed by
Z[...] that the complainant had been raped
.
Nosipho was taken to the Amagwaza
Hospital
i
n
Melmoth where she was examined by Dr Mdalose
.
The doctor gave detai
l
ed
testimony
i
n
relation to her phys
i
cal
and gynaeco
l
ogical
findings upon her examination of
t
he
complainant. She concluded that
she
could
not
e
x
clude
the
possibility
that
the
complainant
could
have
been raped
.
Significantly
,
the doctor testified of a
'
foul
-
smelling
discharge
"
which
she observed while examining the complainant
,
which she believed could have been
caused by a sexual transm
i
tte
d
infect
i
on
.
[17]
It is trite that a court must be cautious when
considering the
r
e
l
iabi
lity
o
f
e
vi
d
e
nc
e
provided
by
a
sin
g
le
witnes
s
(see:
R
v
Mokoena
1
9
3
2
OPD 7
9
,
S v Sauls
&
others
1981
(
3
)
SA
1
72
(
A) at
1
80
and
Stev
e
ns
v
S
[2005] 1 All SA 1
(
SCA)
).
In
S v J
1998
(2)
SA 984
(SCA)
it
was held that when evaluating the
evidence of an alleged victim of rape or sexual assault
,
a court need do no more than exercise
the caution that is necessary
when
there
is only one w
i
tness
to the offence alleged. In addition
,
the
evidence of the complainant must not be seen in isolation but rather
as part of the mosaic of evidence before the court. In this
regard
,
in assessing the evidence of the single
witness, the trial court considered that in respect of one of the
incidents
,
the
version of the complainant is corroborated by her sister
.
Arising from that interaction, the
complainant made her first report to her sister
.
Crucially, under cross examination the
complainant was asked whether she took note of any features of the
appellant's penis during
the various occasions on which she was
raped. The complainant responded that she noticed
"
bumps"
on his penis. When the appellant testified in his defence
,
he admitted that his penis contained a
bulge, arising from certain beads inserted in his penis while he was
incarcerated in prison
in
Durban
.
He further conceded that one would only
be able to notice this feature if one were in close proximity to him.
When confronted with
the likelihood that the complainant would not
have been able to make this observation had she not been raped by
him
,
the
appellant resorted to the possibility that some of the young boys who
had taken a bath
in
his
presence could have told the complainant of
this distinct feature on his penis.
[18]
Against the weight of this evidence, the
appellant offered a bare denial of the allegations against him and
suggested that the complainant
levelled false allegations
against him because he was a strict
disciplinarian at home
,
often
enquiring why she returned late from school. These allegations were
denied by the complainant
,
whom
the appellant also accused of sometimes
sleeping away from home.
[19]
The trial court,
in
my view
,
correctly rejected the appellant's
denials and concluded that his attempts to discredit the complainant
as being someone who had sexual
intercourse with another person as
being a fabrication
.
Moreover
,
the trial
court
correctly concluded
that
the
evidence
on which the State's case was
based was consistent with the proven facts. The trial court gave
careful attention to the evidence of
the complainant.
Her
version found sufficient corroboration
in the evidence of her older sister Zethu
,
in so far as one of the incidents is
concerned. Importantly,
the
complainant's
evidence that she noticed a peculiarity
regarding the ap
pellant's
penis suggests overwhelmingly that she could only have made this
observation from being in close proximity to the appellant
while he
was naked
.
The
bare denial by the appellant and his excuses why the complainant
would want to falsely implicate him were correctly dismissed
by the
court a quo as being without merit. I am satisfied that the trial
court considered all the critical aspects of the evidence
presented
and that the state proved the charge against the appellant beyond any
reasonable doubt.
I
am
unable to find any misdirection
in
the
reasoning of the court a quo in convicting the appellant on the count
of rape.
[20]
The conviction of the appellant
,
in light of the charge against him and
in the absence of substantial and compelling circumstances, would
attract a life sentence based
on the complainant being under
the
age of 16 at the time of the offence
;
that she was repeatedly raped and that
the appellant knew at the time of the offence that he was HIV
positive. This latter feature
was not relied on by the State
in
evidence or
as a component of the charge against the
appellant as this factor only became known when the appellant
testified.
[21]
The court a quo took into account the
personal circumstances of the appellant
,
his history of previous convictions
including his release on parole in April 2011 after having been
sentenced to 12 years
imprisonment
for
robbery
in
October
2003. It
is
clear
that his previous
incarceration
did
not have a rehabilitative effect on him
.
At the same time
,
the trial court properly considered the
seriousness of the offence and that it was perpetrated against his
niece
,
who
was 11 years old at the time. The appellant betrayed the
trust that the complainant would have placed in him as an
elder
in
her family. Moreover
,
she repeatedly testified that the
appellant threatened to kill her entire family
if
she
reported
the incident to anyone
.
This would appear to be consistent with
the evidence of Zethu, the complainant's older s
i
ster,
who testified that when she informed her grandmother that the
complainant was being raped by the appellant
,
the grandmother also expressed concern
that the appellant could kill her.
[22]
It
is trite that the imposition of a sentence
is
one
which falls pre-eminently
in
the
domain of the trial court and
it
is
only if there has been an
irregularity
or
misdirection, or
where
the
sentence
is
'shocki
ng
',
'startling'
or
'disturbingly
in
a
p
p
ro
priate
',
that
an appeal court will interfere with the sentence imposed
.
[1]
The
court a quo properly took into account the prevalence of rape of
young children. Society looks to the courts as a last refuge
to help
eradicate this scourge
.
As
the Supreme Co
u
rt
of Appea
l
stated
i
n
S
v
Chap
m
a
n
1
997
(
3
)
SA
34
1
(
S
C
A
)
at
3
441
tha
t
'
[rape]
is a very serious offence
,
constituting
as it does a humiliating
,
degrading
and brutal invasion of the privacy
,
the
dignity and the person of the vict
i
m
.'
The
leg
i
slature
has seen it proper to mandate
a
prescr
i
bed
minimum
of
life imprisonment as a deterrent
against
th
i
s
type of behaviour
In
the absence
of
any substantial and compelling c
i
rcumstances
,
of
which
I
found
none
,
I
conclude
that there is no basis to interfere w
i
th
the sentence imposed. There is no evidence of any misdirection by the
court
a quo
.
[23]
I
n the
result
,
I
make the following o
r
de
r:
The
appeal against the appellant's conviction and sentence is d
i
smissed
.
Chetty
J
LOPES
J
Ap
pearances
For
the appellant: Mr E Chiliza
Instructed
by:
Legal Aid Durban
Tel:
031 304 0100
Email:
EmmanuelC@Legal-aid.co.za
And
too:
PregasenM@legal-aid.co.za
For
the respondent: Mr K S Krishen
Instructed
by:
The Durban Public Prosecutions
Tel:
031 334 5010
Email:
kshah@npa.gov.za
Date
reserved:
21 July 2021
Date
of judgment: 30 July 2021
Kindly
note this
judgment
i
s
deliv
e
red
elec
t
ronically
on 30
July
2021
at
11h30
[1]
See
S
v
Ma
lga
s
200
1
(
2
)
SA
1
222
(SCA)
p
a
ra
1
2
:
'
Howeve
r
,
even
in
the absence
of
material misdirection
,
an
appellate
court
may yet be justified
i
n
i
nterfering
with the s
e
ntence
imposed
by
the trial Court
.
It
may
do
so when
the
disparity
between
the
sentence of
the
t
r
ial
court and the sentence which the
appellate Court would have imposed had it been the trial court is so
marked that
it can
properly
be
descri
b
ed
as
'shocking'
,
'startling
'
or
'disturb
i
ngly
inappropriate
.
'
'