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[2021] ZAKZPHC 85
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Z.P.K v S (AR220/2020) [2021] ZAKZPHC 85; 2021 (2) SACR 616 (KZP) (8 October 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR220/2020
In
the matter between:
Z[…]
P[…]
K[…] APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Umzimkhulu Magistrates’ Court (sitting as
court of first instance):
The
appeal against both the convictions and sentence be upheld.
A
copy of this judgment is to be forwarded to the Secretary of the
Magistrate’s Commission, Mr Dawood.
JUDGMENT
Delivered
on 8 October 2021
Maharaj
AJ (Jappie JP concurring):
Introduction
[1] The
appellant, Z[…] P[…] K[…], was convicted of
three counts of rape in contravention
of section 3 of the Criminal
Law (sexual offences and related matters) Amendment Act 32 of 2007,
(Hereinafter referred to as Sexual
Offences Act) of three female
children below the age of 16, in the regional court sitting at
UMzimkhulu on the 18 October 2013.
[2] On
21 October 2013 the appellant was handed down a life sentence, the
learned regional magistrate taking all
counts as one for the purposes
of sentence.
[3] The
matter serves before this court pursuant to the provisions of Section
309 (1)(a) of the Criminal Procedure
Act 51 of 1977 (hereafter
referred to as the Act) which provides as follows:
‘
If a person was
sentenced to imprisonment for life by a regional court under section
51(1) of the Criminal Law Amendment Act, 1997
(Act No. 105 of 1997),
he or she may note such an appeal without having to apply for leave
in terms of section 309 B’.
[4] The
appeal lies against both convictions and sentence.
[5] The
factual matrix in summary is that the appellant is the biological
father to the complainant on counts 1
and 2 and a father figure to
the complainant on count 3, who is the niece of the appellant’s
wife.
[6] The
incidents of rape are alleged to have taken place during the
following periods:
On count 1, in respect of
T[…] K[…] between the years 2000 to 2012.
On count 2, in respect of
A[…] K[…] between the years 2000 to 2012.
On count 3, in respect of
Y[…] M[…] between the years 2009 to 2012.
[7] The
appellant was employed at Harmony Gold in Johannesburg and would
visit the home where the children lived
during the periods averred in
the charge sheet and would engage in sexual intercourse with the
complainants. This was done in the
absence of the complainants’
mother.
[8] These
incidents of sexual intercourse occurred on diverse occasions when
the appellant visited his home during
the course of the year.
[9] The
incidents of rape finally came to light when the complainant on count
1, T[…] K[…], penned
a letter to her mother before
leaving the home. In this letter the complainant mentioned that the
appellant had wanted to sleep
with her.
[10] T[…]
testified that the appellant had raped her from the time she was
eleven years of age and stopped
when she was fifteen years of age.
She did not disclose the incidents of rape to any person during this
time. She was not examined
by a medical doctor in relation to these
incidents of rape.
[11] The
complainant on count 2, A[…] K[…] testified that the
appellant had raped her from the age
of six years and stopped when
she was twelve years of age. Likewise she did not describe these
incidents of rape to any person
at that time, as she believed that
the appellant would be angry and would assault her. She only reported
the rape to her mother
after T[…] had left home.
[12] The
complainant on count 3, Y[…] M[…] testified that she
was staying at the home of the complainants
on count 1 and 2, when
the appellant had sexual intercourse with her many times. It was her
aunt who said that she must report
the incidents of rape. Y[…]
did not make any report of rape until A[…] made her report.
[13] It
is trite law that the onus to establish the guilt of an accused
person rests with the State which has to
be discharged beyond
reasonable doubt.
[14] In
this regard see
[1]
, where Heher
AJ (as he then was) held the following at page 139 paragraph [15]:
‘
The correct
approach is to weigh up all the elements which point to the guilt of
the accused against all those which are indicative
of his innocence,
taking proper account 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’.
[15] See
also
[2]
where Nugent J held the
following:
‘
The onus of proof
in a criminal case is discharged by the state if the evidence
established the guilt of the accused beyond a reasonable
doubt. The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent.
[3]
[16] The
medical examination as contained in the pro-forma J88 in respect of
the complainants on counts 1 and 3
indicates that there was no hymen,
no bruise, no tear or scar and that the medical examination was
normal.
[17] In
my view, the medical examination on these complainants does not
accord the probabilities of the evidence
of these complainants. The
incidents of rape as testified to, took place over a period of time
and on multiple occasions. Surely
in these circumstances there would
have been some medical evidence of penile penetration in terms of
injuries to these complainants.
[18] The
court would in these circumstances be fully justified in drawing an
adverse inference against the State
in failing to call the doctor to
testify and to elucidate and expand on his clinical examination in
respect of both the complainants.
[19] The
appellant made no threats to any of the complainants about reporting
this matter. A[…] thought
and perceived on her own that the
appellant would be angry and would assault her.
[20] At
page 85 line 17 of the appeal record (thereinafter referred to as the
record) she says the following:
‘
Well, I did not
see him at the time he was doing it, I only realised when he was now
wet that he had urinated.’
[21] A[…]
also posited multiple reasons for not reporting the incidents of
rape. These included, not telling
her sisters because she was afraid;
not telling her teachers because she was afraid they would laugh at
her and it did not come
to her mind to tell her friends.
[22] As
mentioned above, the appellant worked in the mines in Johannesburg.
He would visit his home during the
course of the year or when he took
ill and would then return. Hence there would have been ample
opportunity and time for the complainants
to have reported what the
appellant had done to each of them. There can be no element of any
fear or duress for not doing so. In
my view, this conduct does not
accord with the probabilities of their evidence.
[23] Y[…]
M[…]’s replies or answers given in cross examination is
telling against her. At page
98 line 17 the question was asked ‘and
how many times did it happen, for example one time, many times, ten
times? The answer
was once. Further at line 25 the question was asked
‘Mam, how many times before’. The answer was two times.
[24] At
page 100 of the record lines 6 – 14 the witness says that A[…]
was writing in the same room,
being on the same bed while she was
being raped but A[…] did not witness the rape. Clearly this
cannot be so.
[25] At
page 105 of the record lines 14 -15 the question was asked ‘Are
you blaming my client because you’re
maybe too afraid of the
real perpetrator? The answer was yes.
[26] The
witness had also mentioned in cross-examination that she had told the
doctor what the appellant had done
to her yet no such recordal is
contained in the pro-forma J88 in respect of Y[…]. This
omission highlights yet again the
importance of having the doctor
testify.
[27] The
evidence of T[…] is also a cause of concern in terms of the
letter that she had penned for the
attention of her mother. The
recorded evidence is that she had written that the appellant had
wanted to sleep with her.
[28] She
did not describe details of the incidents of rape by the appellant in
the letter. The reason posited for
such an omission is that she did
not have the time to do so and she felt upset and disappointed.
[29] These
reasons in my view, are clearly at odds with the purpose of penning
the letter to her mother when she
left home. This omission also does
not accord with the probabilities of her evidence in this regard.
[30] The
learned regional magistrate erred in his interpretation of the
contents of the letter and was clearly
wrong in finding that the
letter made mention of sexual intercourse. At page 200 line 24 he
says the following:
‘
In that letter
T[…], that is the complainant in count 1, said that the
accused used to have sexual intercourse with her.’
[31] The
above view is contradicted at page 55 of the record line 22, where
the prosecutor poses the question:
‘
Now in the letter
did you tell your mother what you have told the court as to when this
started and how it was happening? That is
now when he was inserting
his penis into your vagina.’ The answer was ‘I did not
explain that.’
[32] Turning
now to the conduct of the learned regional magistrate. It would be
remiss of the court not to comment
on the conduct of the learned
regional magistrate.
[33] Section
34 of the Constitution of The Republic of South Africa provides as
follows:
‘
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a court or where
appropriate another independent and impartial tribunal or forum.’
[34] The
conduct and behaviour of the regional magistrate in my view is
deserving of censure. He was clearly not
fair in his treatment of the
appellant during the trial.
[35] His
utterances to the appellant was suggestive of a judicial officer who
was impatient and curt which compromised
his impartiality.
[36] The
record of the proceedings in the following aspects fortify my view
expressed aforesaid.
[37] At
page 65 line 3, he says the following:
‘
Why are you having
your finger once more? You ask through your attorney. You must be
careful because you might end up incriminating
yourself.’
[38] At
page 153 line 22:
‘
Do you agree that
you agree because you know this Lindos thing is non-existent?’
The answer ‘Yes, your worship, it is
non-existent but the
person did come to me. Your worship and it is non-existent because I
have no one to come and verify what I
am saying to the Court.’
[39] At
page 154 line 8:
‘
Do you agree what
is said, that you know Linsdos never said that?
The answer was ‘I
agree’.
[40] At
page 155 Lines 4 to 6:
‘
Do not make longer
than necessary explanations please, man. You are wasting our time.’
[41] At
page 155 line 25 when the prosecutor says:
‘
So, therefore it
means when a person makes an admission about a specific allegation it
means that person has done it, is it not?
[42] The
regional magistrate intervenes and asks:
‘
Is it so?’
The
appellant qualifies his answer at page 156 line 10 where he says:
‘
Because I
explained your worship that I am not saying I did this.’
[43] The
record contains other instances where the regional magistrate
intervenes by asking ‘Is it so’
or ‘Did you have
sexual intercourse with them?’
[44] The
following comments of the regional magistrate clearly reflects his
impatience and bias against the appellant
at page 159 lines 21 to 25:
‘
Do you want the
doctor to check your hymen, hey? The question is about the hymen,
man. Do you have a hymen?
[45] At
page 161 line 17 the regional magistrate says the following:
‘
Do not waste our
time, Mr K[…], please.’
[46] The
appellant says at 165, line 5 that he was not going to disagree with
the court when the regional magistrate
asked him if he agrees with
the prosecutor’s suggestion that he raped the children on
diverse occasions.
[47] At
page 142 line 10 the regional magistrate
mero motu
invited
both the State and defence to address him on the possibility of
section 174 on the rape charge on count 1. Unfortunately,
for the
appellant, his defence counsel did not rise to the challenge of
addressing the court and in my view committed a dereliction
of duty
in not doing so. The regional magistrate did not give a ruling on the
section 174 application and the appellant testified
on all the
counts.
[48] Nothing
prevented the regional magistrate from
mero
moto
exercising his discretion to discharge the appellant at that stage if
he entertained a doubt on count one. This is yet another
example of
the unfair trial the appellant was subjected to by the regional
magistrate.
[4]
[49] As
a result of the aforegoing reasons, it would be superfluous to
consider the appellant’s version.
[50] In
my view the evidence adduced by the State does not reach the
threshold required for its acceptability to
constitute proof beyond
reasonable doubt.
[51] In
addition the conduct of the regional magistrate not only violates his
oath of office but also the appellant’s
right to a fair trial
and to be treated with dignity in our courts. The appellant was also
subjected to being badgered in the most
egregious manner.
[52] A
caveat should be sounded to all judicial officers that restraint and
patience on the bench are the hallmarks
of keeping an open mind when
adjudicating in our courts.
[53] In
passing, I might add that as part of the ancillary orders in these
types of matters the provisions of section
299A of the Act,
peremptory as it is, enjoins the court to bring to the attention of
the complainant their right to make representations
and to be present
at parole board meetings.
[54] Accordingly,
I propose the following order:
The appeal against both
the convictions and sentence be upheld.
A
copy of this judgment is to be forwarded to the Secretary of the
Magistrate’s Commission, Mr Dawood.
MAHARAJ
AJ
JAPPIE
JP
DATE
OF HEARING: 8
October 2021
DATE
OF JUDGMENT: 8
October 2021
FOR
THE APPELLANT: Mrs
Marais
FOR
THE RESPONDENT: Mr E X
Sindane
[1]
S
v Chabalala 2003 (1) SACR 134 (SCA)
[2]
S
v Van Der Meyden
1999 (1) SACR 447
(WLD) AT 488 E-F
[3]
See
R v Difford
1937 AD 370
at 373 and 383.
[4]
See
R v Mkhize and another
1960 (1) SA 276
(N).