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[2021] ZAKZPHC 84
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Luvuno v S (AR589/18) [2021] ZAKZPHC 84 (14 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 589/18
In
the matter between:
KUKI
THEOPHELUS
LUVUNO APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Regional Court, Pietermaritzburg (Ms V Jamuna
sitting as a court of first instance)
1. The
appeal against conviction on the charge of rape is upheld.
2. The
conviction and sentence on the charge of rape is set aside.
JUDGMENT
Delivered
on:
Mngadi
J: (Gani AJ concurring)
[1] The
appellant having been convicted and sentenced to life imprisonment by
a court of a regional division, in
the exercise of an automatic right
of appeal, appeals against conviction and sentence.
[2] The
appellant stood charged before the regional court on three (3)
counts, namely, two counts of rape and one
(1) count of sexual
assault. The court acquitted him on one (1) count of rape. The court
on the other count of rape convicted the
appellant and having found
no substantial and compelling circumstances for a court to impose a
lesser sentence, sentenced the appellant
to life imprisonment. The
court on the charge of sexual assault convicted the appellant as
charged and sentenced him to five (5)
years imprisonment.
[3] The
appeal is confined to the conviction and sentence on the charge of
rape. The charge alleged rape in contravention
of s3 of the Sexual
Offences and Related Matter Act No. 38 of 2007 read with section
51(1) and schedule 2 of the Criminal Law Amendment
Act No. 105 of
1997 (the CLAA). It alleged that on 7 January 2011 the appellant
unlawfully and intentionally committed an act of
sexual penetration
with [L... M...] the complainant aged five (5) years by inserting his
genital organ into her genital organ without
her consent.
[4] A
legal representative represented the appellant during the trial. The
appellant pleaded not guilty to the
charge. He through his legal
representative elected to remain silent and to put the State to the
proof of the charge against him.
[5] The
State led evidence from the complainant, the complainant's mother
T[…] M[…] and Thokozane
Dube (the medical doctor). The
documents handed in as exhibits were the birth certificate of the
complainant and the medical examination
report (J88) of the
complainant. The appellant testified for the defence and he did not
call any witnesses.
[6] The
heads of argument addressed the question of the appropriateness of
the sentence only without addressing
the issue of conviction. After
perusing the record of the proceedings, we requested counsel in the
further heads of argument to
address the issue of the conviction,
which they did. The
Criminal Law (Sentencing) Amendment Act 38 of
2007
commencing on 31 December 2007 amends the Criminal Procedure Act
51 of 1977 (the CPA) so as to provide for an automatic right of
appeal if a person is sentenced to life imprisonment by a regional
court. The automatic right to appeal relates to both conviction
and
sentence. Section 309 (1) (a) of the CPA provides that a person
sentenced to imprisonment for life by a regional court under
section
51
(1) of the
Criminal Law Amendment Act No 105 of 1997
may note an
appeal against conviction and sentence without having to apply for
leave to appeal in terms of
s309B
of the CPA. The essence of the
automatic right of appeal is that an accused person tried in the
regional court and sentenced to
life imprisonment dissatisfied with
the outcome of the trial may request the high court to relock at the
matter. The automatic
right of appeal relates to both issues
involving an error of law or procedure. It is akin to an automatic
review. The appeal court
dealing with the matter in terms of an
automatic right of appeal irrespective of the issues raised has a
duty to satisfy itself
that the conviction is in accordance with law
in that it is supported by evidence and that the sentence of life
imprisonment is
appropriate.
[7] The
court must be satisfied that in the trial before the regional
magistrate there was sufficient body of evidence
based on which a
judicial officer could return the verdict of guilt beyond reasonable
doubt. In S
v K
2008(1) SACR 84 (C) at 86a-g, it was held that
the judicial officer needs to be vigilant in the assessment and
evaluation of evidence
in order to eliminate the risk of conviction
based on insufficient evidence, particularly, as the offence carries
a heavy punishment.
The fact that complainants in such matters are
women and children, the most vulnerable members of society, is not to
be allowed
to be the substitute for proof beyond reasonable doubt.
The failure to evaluate evidence properly and objectively is nothing
other
than an injustice.
[8] The
appellant was charged with rape of a five (5) year old girl. The
complainant was five (5) years old when
the alleged rape took place
and she was twelve (12) years old when she testified. It made it
difficult to determine whether the
complainant could correctly recall
what happened to her when she was five (5) years old, at that age she
was not in a possession
to comprehend what was happening. If the
complainant was not a competent witness at the time that the incident
took place, the
State could not show that she was at that age of
sufficient understanding to distinguish between the truth and the
lies and to
understand the import of telling the truth. She could not
recall something that she could not understand. In my view, her
evidence
is a reconstruction to which not much weight can be given.
It follows that the evidence of the first report made by the
complainant
at the age of five (5) whilst she was not a competent
witness would also carry no weight. Further, relating to evidence of
young
children lapse of time may have a huge impact. See
S
v
T
1973 (3) SA 794
(A). In
S
v Mbokhani
2009 (1)
SACR 533
T the court held that the passage of time may distort the
child's memory.
[9] The
complainant testified that she was at home and she was playing
outside with her two siblings. It was during
the day and her mother
who was sick was in the house. She testified that the appellant who
was unknown to her approached. He asked
her who was present at home.
She told him that her mother was present. He proceeded into her
house. After a while, the appellant
came out. The appellant asked her
to go with him to his house and that he would give her cakes and
juice. She agreed and she walked
with the appellant. The appellant
held her by hand. They reached a spot where there was some tall
grass. The appellant instructed
her to sit down. He asked her to lean
against his arm. When he said she must lean against his arm he was
lying on top of her. She
sat on the grass and she took off her panty.
She was wearing a skirt and at shirt. The record when the Prosecutor
lead evidence
from the complainant indicates the following:
'
Prosecutor:
Okay
what did you do after he instructed you to sit down?......I sat down
. He then asked me to lean against his arm.
Court:
Lean
against his arm?......Yes.
Prosecutor:
Where
did you sit down?...... Sat down on the grass.
When he said that you
must lean on his arm how was he positioned?... He was lying on top of
me.
L...M
you have to tell the court what happened step by step. What did this
man do until he slept on top
of you?......He instructed me to sit
down and thereafter I took off my panties.
What were you wearing on
that day?--- I was wearing a skirt and a T shirt.
Court:
T Shirt or
skipper? ....Skipper, T Skirt and shoes.
Prosecutor:
So,
would it be skirt, T shirt, panty and your shoes?...... Yes
This man told you to sit
down and he took off your panty. What happened? Prosecutor: Sorry,
where did he place this panty after
he took off this panty where did
he place it?
Court:
L...M...
first listen to me. I want you to listen to me L...M… you need
to tell us step by step what happened to you that
day he made you sit
down on the grass?...... Yes
We were not there so you
have to tell us?...... Yes.
I need you to cast your
mind back to when this incident occurred and tell me. I want you to
narrate to us what happened to you to
us as if your you were telling
a story...... Yes.
Prosecutor:
Please
tell us then after you were sitting down what did he do?...... He
then took off my panty.
Yes, I was asking where
he left the panty?...... Actually he pulled my panties down to my
legs.
Where about on your
legs?... Around my ankles.
Proceed. …He then
laid on top of me.
How were you position
when he laid on top of you?.... I was lying facing upwards.
What was the position of
his clothing when he lay on top of you?...... By then he had opened
or unzipped the zip of his trousers.
He laid on top of you,
what happened then? …. He thereafter inserted his penis into
my vagina.
Interpreter:
Your
Worship, the witness using the kids words for penis is tololozi and
the kids words vagina komozi, nkogozi nyalo,my vagina
Prosecutor:
How
did you feel when he inserted his penis into your vagina?..... It was
painful although I did not cry.
Where was it painful?
......linside my vagina
Why did you not cry?
Interpreter:
The
witness is silence.
Prosecutor:
Sorry
! …. Because there was nobody even if I had cried who could
have heard me.
Court:
Sorry even
if she did cry nobody would have heard her?...... Yes.
Prosecutor:
Yes,
proceed, he inserted his penis into your vagina, what happened
then?...... He started making some movements whilst he was on
top of
me.
What movements did he
make?...Up and down movements
Proceed…. After he
had finished making those movements, he then dressed me on my panty.
Court:
He pulled
up your panty?... Yes
Prosecutor
:
Proceed ?... He then told me to go
What did you do?... I got
up and started to walk. I actually left together from that spot
together with that dad. Whilst leaving
together with that dad on our
route or way what he remarked or said:
'Look, If you love
something it means do you love love that person'.
Did you understand what
he meant? … No
Proceed what happened
after he said those words?... He further then said to me that he is
going to get hold of cakes and juice,
he was going to see me. He then
said to me that I must go along on a separate tarred way or route
whereas he also going to walk
along or a different route or pathway.
Proceed ?...... After,
that I went home and on arriving at home I than found my grandmother.
I found my grandmother, Sabelo, Sane,
Ayathandwa and Sane's mother.'
[10] The
complainant asked by the prosecutor where her skirt was when this man
inserted the penis into her vagina,
said he had pulled it up to the
area of her stomach. She said the man after saying they must take
separate ways, he greeted her
goodbye and he started walking up that
vicinity. She stated that her grandmother asked her when she arrived
where she was coming
from. She was in the dining room with her
grandmother and her mother was in the bedroom. She said to her
grandmother she left with
the man who came over at her home. She said
her grandmother asked her if there was a thing that he had done to
her. She told the
grandmother that he had raped her. She told the
grandmother what happened. She stated that the grandmother and her
sisters agreed
to the effect that he had raped her. She stated that
she was then taken to the police. Her grandmother told the police
what happened.
On the same day, she was taken to hospital. Two nurses
examined her. She was checked but she was not asked to explain what
happened.
[11] The
complainant testified that when the man called her, she was playing
with her siblings near the door of
her house. Her mother sent her
siblings to the shop and she remained behind. Her mother sent her
siblings to the shop whilst she
and the man were in the house. Soon
after her siblings had left, the man came out of the house and he
went away with her. She said
she left with the man and she did not
think he would do anything bad to her because he was her mother's
acquaintance. She said
the appellant is the man who took her away.
She said he was lying when he says he did not know her mother, that
he did not come
to her home and that he did not take her away and
raped her.
[12] T[…]
M[…]. She was the mother of the complainant. On 7 January 2011
(date of the incident) at
approximately 14h00, the appellant came to
her house. The children were playing outside. It was the first time
for the appellant
to come to her house. She used to see him in the
bus whilst she worked. The appellant told her that he had come to
bring the word
of God. He said he saw her walking slowly and that she
was sick. She told him that she had everything she needed and that
she was
not keen to join his church. The appellant then left.
[13] She
testified that after the appellant had left the house, she sent the
complainant and Noluthando her sister
to the shop. Noluthando
returned from the shop alone. Noluthando asked her where the
complainant was. She told Noluthando that
she must go and look for
the complainant. She came back and she told her that she could not
find the complainant. She told her
to go back and look for her.
Noluthando came back with the complainant. The complainant did not
enter the house. She stood behind
the house. She instructed
Noluthando to go and call their grandmother for her to find out what
was the problem with the complainant.
The grandmother arrived. The
grandmother attended to the complainant to find out what the problem
was. The complainant was young
and she did not understand what
happened.
[14] Thokozani
Dube (Dube) testified that she qualified as a medical doctor in 2006.
On 7 January 2011, she examined
the complainant and she completed the
medical examination report. She noted hymen and posterior rim of
hymen was not visualised.
She found redness on urethral orifice,
redness on the para-urethral folds. The redness may be as a result of
infection. She concluded
that because of the redness she found that
sexual assault cannot be excluded, vaginal penetration was most
likely. The doctor in
her in evidence stated that because of that
redness and that the posterior rim being absent it meant that there
was something that
went in and it was recent. In my view, it is
unfortunate that the doctor did not explain the significance of the
absence of hymeneal
posterior rim in relation to the time of the
examination and the time of the incident. Further, if redness in the
areas in which
it was found could be because of infection, what
measures and tests she conducted to eliminate infection as the cause
of the redness
on the complainant. In my view, it is significant that
the examination was conducted on the same date as the alleged
incident but
there were no injuries found on the complainant on the
gynaecological examination. It is clear as testified to by the doctor
that
she relied heavily on the history given to her for the
conclusion. She did not approach the examination with the view to
independently
verify the history given to her. She assumed that the
history given to her was correct which may have influenced her
opinion. In
S
v ML
2016(2) SACR 160 (SCA) at 162i-163a
the court held that where the complainant is a very young child and
the only witness implicating
the appellant, her evidence must not
only be treated with caution, but a degree of corroboration is
required to reduce the danger
of relying solely upon her evidence. To
rely upon the cryptic findings and bald conclusion by the doctor to
provide the requisite
corroboration is unjustified.
[15] The
appellant testified. He stated that he did not know the mother of the
complainant. He denied ever visiting
the home of the complainant. He
denied that he took the complainant away and he had sexual
intercourse with her. He testified that
he did not know the
complainant.
[16] The
medical examination report (J88) indicates that DNA samples placed in
the evidence collection kit 09A7AB9731XX
were collected. There is no
indication on the record whether any DNA examination was conducted
and the results thereof. However,
it took the State six (6) years to
commence with the prosecution of the appellant. It is not on the
record what caused the delay.
However, the State had an ample
opportunity to present the DNA evidence in support of the State case.
The appellant to be fair
to him was entitled to be informed of the
result of the DNA examination. The learned regional magistrate
readily concluded that
the complainant testified in a clear, concise
and satisfactory manner. She found that her evidence was consistent
with first report
and it was corroborated by the medical evidence
which showed that she was recently sexually molested. In my view, the
said conclusion
was arrived at without a scrutiny of the evidence and
without taking into consideration the shortcomings in the evidence.
[17] The
complainant's mother stated that the complainant's grandmother
attended to the complainant. She indicated
that it is the grandmother
who checked the complainant. The complainant testified that her
grandmother questioned her as to where
she had been and what
happened. She said the grandmother agreed with the complainant that
she had been raped. In my view, it was
crucial that the grandmother
be called as a witness. She was not called and it was not explained
why she could not be called as
a witness. The result is that there is
no evidence of the first report. Further, it cannot be ascertained
whether any undue influence
or suggestibility was exercised in the
manner the complainant was questioned.
[18] The
State case against the appellant is entirely dependent on the
evidence of the complainant. It is single
witness evidence and it is
the evidence of a child. The evidence of the complainant in view of
other evidence that could have supported
it is not clear and
satisfactory in all material respects. See
R v Mokoena
1956
(3) SA 81
(A) at 85G-H;
S v
Sauls
&
others
1981(3) SA 172 (A) at 180E-G. The fact that the complainant was
very young when the incident took place weakens her evidence.
Further,
the passage of time between the date of the incident and the
complainant testifying in court could have distorted the memory of
the complainant and further have it clouded by imaginativeness and
suggestibility.
[19] It
is trite that evidence of children poses particular challenges. It is
required that it to be approached
with extreme caution. The danger is
not only that children are highly imaginative but their story may be
the product of suggestions
by others. In the instant referred to
above, the manner the complainant was led is close to exercising an
influence on her. The
questions suggested that something happened and
she must tell the court what happened. It is not known how the
grandmother of the
complainant questioned her. The complainant
testified that grandmother and her siblings told her that the
appellant raped her.
The complainant could not explain why she went
away with a stranger, why she did not cry when the stranger sexually
molested her
and why she did not volunteer to report what the
stranger did to her. If she could not tell the police and the doctor
what happened
why was she able to tell her grandmother what happened.
[20] It
is trite that a court of appeal will not disturb factual findings of
a trial court unless the latter had
committed a misdirection or where
the appeal court is convinced that the conclusion reached is wrong(
R
v Dhlumayo
1948 (2) SA 677
(A)). In my view, it is very dangerous
in this case to base a conviction of the appellant on the evidence of
the complainant alone.
The learned regional magistrate failed to
approach the evidence of the complainant with the necessary caution.
In my view, the
State failed to prove the guilt of the appellant
beyond reasonable doubt. The conviction and sentence on the charge of
rape falls
to be set aside.
[21] I
propose the following order:
1. The
appeal against conviction- on the charge of rape is upheld.
2. The
conviction and sentence on the charge of rape is set aside.
Mngadi
J
I
agree, it so ordered
Gani
AJ
APPEARANCES
Case
Number AR
589/18
For
the Appellant Bongani
Mbatha
Instructed
by Legal
Aid South Africa
PIETERMARITZBURG
For
the respondents M
E Mthembu
Instructed
by Deputy
Director Public Prosecutions
PIETERMARITZBURG
Heard
on 10
September 2021
Judgement
delivered on 14 September 2021