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[2021] ZAKZPHC 47
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Hadebe v S (AR242/20) [2021] ZAKZPHC 47 (5 August 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR242/20
In
the matter between:
ABEDNIGO
JABULANI
HADEBE APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from the Regional Court, Eshowe:
The appeal against
conviction and sentence is dismissed.
JUDGMENT
Chetty J (Masipa J
concurring)
[1] The
appellant was charged in the Regional Court, Port Shepstone with one
count of rape in terms of s 3 of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007 (‘the Sexual Offences
Act’), further read with
the provisions of ss 51(1) and (2),
and Parts I and Ill of Schedule 2 of the Criminal Law Amendment Act,
1997 (‘the Amendment
Act’) and s 94 of the Criminal
Procedure Act, 1977 (‘the CPA’). The appellant was
alerted to the applicability
of life imprisonment in the event of his
conviction as the complainant was under the age of 12. He pleaded not
guilty to the charge
and 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 23
March 2020.
[2] This
appeal comes before us by way of the provisions of s 309 of the CPA
which provides for an automatic right
of appeal to any person who has
been sentenced to life imprisonment by a Regional Court in terms of s
51(1) of the Amendment 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 complainant, who is referred
to by her forename, A[…], to
protect her identity as she is a minor, testified with the assistance
of an intermediary appointed
by the court in terms of s 170A of the
CPA. The appellant is her mother’s boyfriend, although she
refers to him as her stepfather.
[4] The
complainant testified that at the time of the incident in June 2017
she lived with her mother, her younger
sister and the appellant in an
area called Bhethani. She was ten years old at the time, attending
grade 4 at Z[…] Primary
School. She related that the incident
of sexual assault occurred during a week day while she was at home
cleaning the house. She
was not required to attend school as she had
already completed her examinations. At the time, the complainant and
her younger sister,
L[…] who was eight years old, were alone
in the company of the appellant. At around midday, L[…] went
out to play
with other children, at which stage the appellant called
the complainant to the bedroom, where he pulled her in, closed the
door,
took off his clothes and undressed the complainant. She tried
to scream but the appellant warned her to be quite. She then
described
him making her lie down on her back on the bed, after which
he “bumped on top” of her, describing the act in which
the appellant inserted his penis into her vagina. After he had
finished, he instructed her to have a bath and not tell anyone of
what had taken place, including her mother, otherwise he would kill
her. At the time of the incident, she testified that her mother
was
at work, where she carries out domestic duties at the nearby holiday
apartments in Shelly Beach.
[5] The
complainant testified that she was wearing pink tights and a T-shirt
on the day. She recalled the colour
of the underwear she had on. With
regard to the appellant, she recalled that he wore a T-shirt, pants
as well as his underwear.
At the time when he inserted his penis into
her vagina, she testified that she wanted to cry but was unable to
because she was
unaware of what he was doing. She does recall however
that her vagina felt painful, even though the “bumping”
was relatively
short. She remained silent regarding the incident as
she believed that he would kill her if she reported it to anyone.
[6] In
December 2018, the complainant was visiting her grandmother at
lzingolweni and she had difficulty walking
as she, in her words, had
sores between her thighs. Her aunt, N.V.N., who is a high school
educator, was at her grandmother’s
house and noticed that the
complainant was walking with some difficulty. On questioning the
complaint, it was ascertained that
she had a rash on her genitalia.
Her aunt then reported this to the complainant’s grandmother
and another elder in the family,
B.C. Ms N.V.N. testified that she
reported the complainant’s unusual walk to her mother and aunt
as she was suspicious that
something may have been wrong,
particularly because she teaches Life Skills to pupils at school. She
also formulated a view that
it was unusual for a child of the
appellant’s age to have a rash on her genitalia.
[7] The
next morning the complainant together with other young girls were
subjected to an examination of their
genitalia by the complaint’s
grandmother and her aunt, Balungile. Having examined the complainant,
her grandmother asked
her who had “played with her”, a
reference to the possible interference with the complainant’s
genitalia by someone.
At first the complainant cried and denied that
anyone had “played” with her. Eventually she informed her
granny and
aunt that it was the appellant. She testified that she
cried upon being asked questions in relation to her genitalia as she
was
fearful that the appellant would kill her. However, she felt
compelled to speak the truth.
[8] Critically,
the complainant was asked whether her granny suggested the name of
the appellant as the culprit.
In this regard, the complainant
testified that “my grandmother asked me if it was Jabulani, and
I said yes, then my aunt
took me to the police station”. When
probed further as to whether the name of the appellant had been
suggested to her, the
complainant provided the following response:
‘
I was about to
tell her Jabulani’s name, then she said, she uttered the word
‘Is it Jabulani”.? I then said yes’.
According
to the complainant, she was about to tell her granny the name of the
appellant, when her granny asked her whether the
perpetrator was the
appellant. She was asked further whether she had been prompted to
blame the appellant, which he denied. She
further stated that she had
no problems with the appellant that would cause her to falsely
implicate him.
[9] The
complainant was thereafter taken by her aunt. Ms N.V.N., to the
police station at lzingolweni and thereafter
to the Thuthuzela Care
Centre where she was examined by Dr Cubelo. Importantly, the doctor
confirmed that the complainant informed
her that she had been raped
in June 2017, almost a year and a half earlier. She further informed
the doctor that she had been raped
by her stepfather and related the
sequence of events as has been set out earlier, including that the
appellant threatened her that
if she reported the incident to her
mother, she would be killed.
[10] Dr
Cubelo confirmed that the complainant was suffering from what is
referred to in medical terms as the vitiligo
of the genitalia, which
is a discolouration of the skin where there is a lack of melanin,
which gives skin its colour. As a result,
the white patches, which
the complainant interpreted as sores or a rash, was in fact a
discolouration of the skin. The doctor concluded
that such a
condition is uncommon in children as young as the complainant as she
was pre-pubertal. She also confirmed that the
examination of the
complainant’s hymen revealed a “big opening diameter”,
which she found to be unusual for a
child of the complainant’s
age. There was also the absence of the posterior rim indicating that
there had been vaginal penetration.
Importantly, the doctor testified
that her observations were of “old injuries” and not
indicative of any “
fresh findings where the incident has
occurred recently”.
This is an important deduction as it
lends credence to the complainant’s version that the incident
occurred a while ago.
[11] The
critical aspect of the appellant’s defence in the court a quo
and before us is that of identity.
The evidence of the doctor
established without contradiction that the complainant had been
vaginally penetrated. The complainant’s
evidence is that the
perpetrator was her stepfather, the appellant. In the court a quo, he
offered a bare denial, suggesting that
the incident could not have
taken place at the time when the complainant alleges it did, as she
would still have been in school
at the time. However, the evidence of
the complainant is clear in this regard – when pupils finish
their examinations, they
are not required to attend further classes
at school. This is also consistent with the court a quo taking
judicial notice of such
a practice in public schools. Moreover, the
appellant contends that the incident could not have happened as
testified to by the
complainant as he would not have been left alone
with the complainant and her sister. This is inconsistent with the
evidence of
the complainant and her mother, who testified that the
appellant was not working in 2017. His only form of occasional
employment
was to cut grass. The complainant’s mother worked
Monday to Friday, and during school days the children would remain at
home
while she left for work. The appellant would remain at home with
the children. She also refuted any suggestion that the appellant
was
driving a taxi during the period when the rape is alleged to have
occurred. She conceded that she was not present when the
complainant
was examined by her mother and her aunt, B.C., nor was she present
when the complainant was questioned with regard
to the identity of
the perpetrator.
[12] It
was submitted on behalf of the appellant in his heads of argument
that the court a quo failed to apply
the necessary cautionary rules
in assessing the evidence of the complainant as a single witness, and
in doing so, failed to subject
her evidence to the necessary
scrutiny. Section 208 of the CPA provides that an accused may be
convicted on the evidence of a single
witness, provided that such
evidence is satisfactory in all material respects. As was set out in
S v Vilakazi
2009 (1) SACR 552
(SCA), the prosecution of rape
cases presents peculiar difficulties, calling for the greatest care
to be taken, particularly where
the complainant is young. The court
added that judicial officers presiding in such cases should carefully
analyse all of the evidence.
[13] It
is contended on behalf of the appellant that the court a quo ignored
the substantial delay in the reporting
of the rape and when the
complainant was asked what had occurred, she did not voluntarily
proffer the name of the appellant. It
is contended that the name of
the appellant was in fact suggested to her, and that she agreed to it
as she was surrounded by adults
at the time.
[14]
In
dealing with the aspect of the delay in the reporting the rape, the
complainant’s version is that she was threatened with
death by
the appellant if she reported the incident to her mother. Her
evidence, which is left intact, is that she believed the
appellant
would kill her. There is nothing before us to gainsay that
impression. As is so often the case with young children, she
was
afraid to report the matter to her own mother, and eventually gave
the details of the incident to her grandmother and aunt.
[1]
On the complainant’s own version, she admitted that had she not
been subjected to the vaginal examination by her elders,
she would
not have disclosed the incident to anyone. Despite what the appellant
had done to her, she testified that she did not
have a poor
relationship with him. By all accounts, she appears to have respected
him as a stepfather. This may in part account
for the fear that she
had in not reporting the incident to anyone, or if she did, whether
she would have been believed. I am satisfied
that the criticism of
the delay in the complainant reporting the rape is without merit and
that her explanation for doing so at
a later stage is entirely
plausible.
[15] Turning
to the contention that the court a quo erred in not scrutinising the
evidence of the complainant to
ensure sufficient safeguards existed
before accepting her evidence over that of the appellant in
circumstances where there were
two conflicting versions, I am of the
view that such criticism is misplaced. The court a quo carefully
analysed the evidence of
each witness against that of the
complainant. The complainant, despite her tender years, was
forthright in her evidence and was
able to recall the colour of her
clothing and that of the appellant on the day of the incident. When
she was asked about the pain
she experienced during the ordeal, she
replied that it was because the appellant was much bigger and heavier
than her. These are
not responses that a child of ten years could
have rehearsed. Moreover, the explanation which she gave to her
elders when she reported
the incident to them is consistent with what
she reported to the doctor and to the police officer who took down
her statement at
the police station. Again, the likelihood of the
complainant having fabricated a false narrative against the
appellant, for no
apparent reason, falls to be rejected.
[16] She
testified that she was afraid of the appellant when he threatened to
kill her if she reported the incident
to her mother. This fear was
heightened not only because he had previously chastised her when she
had fought with her younger sister,
but more importantly that she had
seen him assaulting her mother. It should be noted that when the
complainant’s mother was
questioned on this aspect, she denied
that the appellant assaulted her - she downplayed the role of the
appellant stating that
he “
would assault the children but
when it came to me, he would grab me roughly, but would not assault
me”.
Even the appellant’s “rough” conduct
towards her mother would have been sufficient to have instilled fear
into
a ten year old child.
[17] As
regards the contention on behalf of the appellant that his identity
was suggested to the complainant, resulting
in his arrest, the sum
total of the complainant’s cross-examination on this aspect is
limited to the following exchange:
‘
If your granny
never said “Was it Jabulani? you would never have said so….
I was going to mention his name.
You agree with me that it
was suggested to you that it was Jabulani?’
As
the complainant had difficulty in understanding the question being
put to her, the attorney acting on behalf of the appellant
informed
the magistrate that this aspect would be left for argument.
Accordingly, the evidence of the complainant in chief stands
largely
intact and undisputed in so far as it is contended that the
perpetrator of the rape was the appellant.
[18] The
above response of the complainant should not be seen in isolation.
When her aunt B.C. testified, she said
that the child was asked
whether the person who had ‘touched’ her was from
lzingolweni (where her grandmother lived)
or in Bhethani (where she
lived with her mother and the appellant). The complainant cried and
responded that “it is father
Jabulani” who lives in
Bhetani. When she was asked whether she was telling the truth, she
said “Yes, it was him”.
Similarly, the complainant’s
aunt, Ms N.V.N. testified that the complainant was never threatened
in any way to implicate
the appellant. There is nothing in the record
to suggest that either Ms B.C. or Ms N.V.N. were intent on
fabricating evidence to
implicate the appellant.
[19] In
assessing the evidence of complainant the court a quo found that she
was a good witness (albeit that it
referred to her as a “a
good
child”).
The primary concern of a trier of fact is to
ascertain whether the evidence of a young witness is trustworthy.
(See:
Woji v Sanlam Insurance Co
Ltd
1981 (1) SA 1020
(A)). It also took into account that the evidence given by the
complainant painted a clear picture of what had transpired in her
home on the day in question. The complainant also did not embellish
her evidence to suggest that she had been raped on more than
one
occasion. She was forthright and consistent that she was raped on one
day only, during the course of the school week, by the
appellant in
June 2017. Again, if the complainant had been coached to falsely
implicate the appellant, she would have exaggerated
the extent of the
sexual assault. She did not. It was stressed in
S v Haupt
2018
(1) SACR 12
(GP) that where the state relies on the evidence of a
single, young witness in cases of a sexual nature, it is imperative
for the
complainant to answer all material questions put to her or
him. The complainant, on a reading of the record, clearly surpassed
this threshold.
[20] In
addition, the evidence of the adult witnesses who were at the scene
at the time when the complainant was
questioned by her grandmother as
to who had “played with her”, are consistent with each
other. All of the adult witnesses
present at the scene testified that
there was no suggestion made to the complainant to implicate the
appellant as the perpetrator.
None of the adult witnesses had any
reason to falsely implicate the appellant as there were no problems
which any of them had with
him.
[21] The
appellant on the other hand was found to be grasping for any possible
defence in an attempt to sow confusion.
He was adamant that he was
employed in June 2017, which is contradictory to his partner’s
recollection. He attempted to distance
himself from the evidence of
the complainant’s mother who stated that the complainant and
her younger sister were often left
alone in the company of the
appellant. Later in his evidence, he retracted his answer and stated
that “sometimes” he
was left alone in her company, but
was persistent that it was not in June 2017. The appellant was also
evasive as to what he was
doing during the June 2017 school holidays.
When asked whether he was at home, he evaded the question by
responding that he was
“around the home”. Only when
pressed further for a direct response did he admit to being at home
during this time.
Seemingly running out of excuses and under the
weight of cross-examination, the appellant stated that his partner
and the mother
of the complainant, who had taken him into her care
upon his release from parole in 2015, was lying to the court that her
children
would have been left in his care in 2017. He suggested that
she was doing so because their relationship had soured since the
complainant’s
revelations of what had occurred.
[22] The
complainant’s evidence has what is so often referred to as ‘the
ring of truth’. The
manner in which she described in detail how
she was raped, the pain she experienced, the clothing worn by the
perpetrator whom
she knew as her stepfather; the period when the
incident occurred (even though it was a year and a half ago from the
time when
she made the first report), as well as her version that she
was about to mention the name of the appellant when her grandmother
uttered his name. All of this points overwhelmingly to the court a
quo having correctly analysed the evidence before it in concluding
that the appellant was indeed the perpetrator. A careful application
of the cautionary rule requires a close examination of all
relevant
factors. (See:
S v Dyira
2010 (1) SACR 78
(ECG)).
[23] Although
not referred to by either counsel, I have had regard to
Mugwedi v
S
[2014] ZASCA 23
(unreported, SCA case no 694/13, 27 March 2014)
where the identity of the perpetrator by the seven-year-old rape
complainant was
not spontaneous. She had been prompted in her
identification, and had made it after an adult in her presence had
first confronted
the appellant. It was held that her evidence could
not be relied upon to sustain a finding of guilt. The evidence of the
complainant
in the present case is corroborated in material respects
by the two adult witnesses, Ms B.C. and Ms N.V.N., who confirmed that
no one threatened the complainant to implicate the appellant. On the
contrary, none of the adult witnesses or indeed the child had
any
reason to falsely implicate the appellant. All three witnesses
testified that they got on well with the appellant.
[24] I
am satisfied that the court a quo applied the necessary caution in
assessing the evidence of the child witness
together with the
corroboration offered by the adult witnesses. I can find no
misdirection in the judgment of the learned Magistrate,
and conclude
that Mr Hadebe was correctly found guilty of rape, read with the
provisions of the Sexual Offences Act.
[25] Turning
to the sentence of life imprisonment imposed, the trial court
correctly considered the seriousness
of the offence and the impact of
such crimes on our society. The betrayal of trust placed in the
appellant as the complainant’s
stepfather is an aggravating
factor. The court a quo considered the appellant’s personal
circumstances, his age and that
he is a father to a new-born child of
five months with the complainant’s mother. This, in addition to
five other children
that he has. It was contended that the trial
court failed to show the appellant mercy when imposing a sentence of
life. The Victim
Impact Statement of the young complainant was also
taken into account. It tells, in very simple language, of the
innocence of youth
ripped away from a young child, with the
perpetrator being someone she trusted. The emotional scarring as a
result of such incidents
last a life time. The incident has also
caused the complainant to be separated from her mother, for whom she
still cares very much.
The appellant is no stranger to the law and
has a previous conviction for three counts of sexual assault in 2005,
for which he
received a period of 16 years imprisonment. He was
released on parole in 2015, only to commit the present crime two
years later.
He clearly has not learnt a lesson from his previous
incarceration, or been sufficiently rehabilitated.
[26] The
legislature has seen it proper to mandate a prescribed minimum of
life imprisonment as a deterrent against
this type of behaviour. In
the absence of any substantial and compelling circumstances, of which
I found none, I conclude that
there is no basis to interfere with the
sentence imposed. There is no evidence of any misdirection by the
court a quo.
[27] In
the result, I make the following order:
The appeal against the
appellant’s conviction and sentence is dismissed.
Chetty
J
Appearances:
For
the appellant: Mr
H N Mlotshwa
Instructed
by: Durban
Justice Center
22
nd
Dorothy Nyembe Street
c/o Pietermaritzburg
Justice Center
Ref: H.N
Mlotshwa/X 856382620
For
the state: Mr
D S
Magwaza
Instructed
by: The
Director
of Public Prosecutions
High
Court Buildings
Pietermaritzburg
Email:
DMagwaza@npa.gov.za
Date
reserved: 30
July 2021
Date
of delivery: 5
August 2021
[1]
See:
S
v Cornick and Another
[2007]
ZASCA 14
where the rape was reported 19 years later and the court
accepted the evidence as credible. The complainant was 14 years at
the
time the offence was committed)