About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 88
|
|
I.N.M v S (49/2020) [2021] ZAKZPHC 88 (15 October 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
AR
No:
49/2020
In
the matter between:
I[…]
N[…]
M[…] APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Regional Court, lngwavuma (S.H. Mundree sitting as a
court of first instance)
1. The
appeal against conviction is upheld.
2. The
conviction and sentence are set aside.
3. The
order of the trial court is substituted thereof with:
'Not guilty and
discharged.'
JUDGMENT
Delivered
on:
Mngadi
J: (Bezuidenhout J concurring)
[1] The
appellant appeals as of automatic right by virtue of being convicted
and sentenced to life imprisonment
by the court of a Regional
Division, against both conviction and sentence. The appellant was
charged before the regional court
with and convicted of rape in
contravention of s 3 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of
2007 (the Act) and sentenced to life
imprisonment.
[2] The
charge of rape alleged that on or about I February 2007 to 20
February 2007 at or near Mathayini area the
appellant did unlawfully
and intentionally have sexual intercourse with [S....N....G....] (the
complainant) aged fifteen (15) years
without her consent on diverse
occasions. The charge was read with sections 51(1), 52(2), 52A and
52B of the Criminal Law Amendment
Act 105 of 1997 (CLAA). The
appellant who was legally represented when the charge was put to him
pleaded not guilty. He stated
as the basis of defence that he never
raped the child. The child influenced by his wife is fabricating the
case against him.
[3] The
State lead evidence of five witnesses, namely; the complainant, her
three (3) maternal aunts and a male
nurse. Documents handed in as
exhibits were the medical examination report (J88) and the
acknowledgement of receipt by the Department
of Home Affairs of an
application for an identity document. The appellant testified for the
defence and he did not call any defence
witnesses.
[4] The
learned regional magistrate after hearing evidence convicted the
appellant as charged. He found no substantial
and compelling
circumstances to impose a lesser sentence than the prescribed minimum
sentence of life imprisonment in terms of
the provisions of the CLAA
and he imposed on the appellant a sentence of life imprisonment.
[5] The
document from the Department of Home Affairs depicted the
complainant's date of birth as 2 January 1991
and it was dated 22
August 2007. The medical examination report indicated that the
examination was conducted at Mosvoldt hospital
on 23 February 2007 at
20h00. It records under the section 'relevant medical history and
medication' was raped by old father on
the 10
th
and 13
th
of February. Under clinical findings, it is recorded: 1. No sign of
external trauma. 2. No sign of vaginal trauma. 3. Examination
done 10
days after the assault. It recorded that the complainant told the
doctor that she had never had sexual intercourse before
with consent.
The gynaecological examination was normal. The hymen was absent, the
vagina admitted two fingers, and it was bleeding.
[6] The
complainant testified as follows. She was sixteen (16) years old. In
February 2007, she was fifteen (15)
years old. She was born on 2
October 1991. She did not have a birth certificate or an
identification document. She was not schooling.
She had forgotten the
name of her last school. She left school due to the problem with the
appellant. The highest school standard
she passed is grade 6. She now
stayed in Johannesburg. Her mother passed away and her mother's
sister stayed with her. She knew
the appellant. He was the husband of
her aunt N[…], the aunt she was staying with in Johannesburg.
[7] The
complainant testified that on 18 February 2007 she was at Emathayini
at the residence of her brother Bongani.
She was staying with the
appellant. They arrived on Saturday. On Sunday, she was sitting
outside in the premises. The appellant
at about 15h00 called her into
the house and he told her to cook, as it was late. She got into the
house, which was also used by
the appellant to sleep in it. The
appellant called her to him. He told her that he loved her. She said
she did not love him. The
appellant then wanted to have sexual
intercourse with her and she refused. He locked the room and he
pushed her with his hands
on her chest onto the bed. She fell on top
of the bed and laid on her side. He undressed her by taking off her
skirt. He took off
her panty. He removed his trouser and shorts. He
closed her mouth with a piece of cloth. He pointed her with a
firearm. He did
what he wanted to do and he got off. He inserted his
penis into her vagina. She did not see what he did with his penis in
her vagina
because he had covered her face and eyes with a piece of
cloth. On top of her, he was moving. She felt movements inside her
vagina
for a short period. She did not do anything because he was
pointing her with a firearm and saying that he will shoot her. The
appellant
rose up, put on his clothes and he left. She put on her
clothes and she went outside. She did not continue cooking.
[8] The
complainant testified that outside she saw the appellant standing.
The appellant told her that her aunt
N[…] asked him to take
her to L[…]'s home. L[…] is her other aunt. He then
took her to L[…]'s home.
The appellant on the way kept telling
her not to inform any person of what happened. He said if she did, he
would shoot her. On
Monday morning, the appellant arrived at L[…]'s
home. He took her to school and he registered her at school. After
school,
she returned to L[…]'s home. L[…]'s husband
told her that the appellant left a message that she must return home
to cook because he slept the previous night without food. She slept
at L[…]'s home. On Tuesday, she returned to the appellant.
She
entered the house. The appellant followed her. He asked her whether
she wanted them to do what they did the other day. She
refused. She
started crying. He said it was useless to cry. He pushed her on to
the bed. He covered her face with his hand. She
saw him taking a
condom and putting in his penis. She was sitting on a mat. She did
not do anything. He was carrying a firearm
and he wanted to shoot
her. He covered her eyes with his hand. He inserted his penis into
her vagina and he did what he did the
other day. She was dressed
whilst sitting on the matt and he undressed her. She was dressed in a
skirt and panties. He was wearing
shorts. He undressed. She was
sitting on the matt. He climbed on top of her. He inserted his penis
in her vagina. He did what he
did and it took a long time. She did
not know whether it was five hours or five minutes. She felt him move
up and down. His penis
was in her vagina. The appellant then rose and
left. She also rose and she went outside. She did not see the
appellant outside.
She thought of phoning her aunt N[…] but
she realised that she had no money.
[9] The
complainant testified that on Tuesday, she became sick and she did
not go to school. She was dizzy and
her eyes were painful, she was
bleeding from her vagina and from her nose. She was feeling weak and
she could not even stand up
to meet her aunt N[…]. N[…]
suggested that they go to Jozini to get some grocery. She did not go
to school on Tuesday
and on Wednesday. N[…] came back on
Thursday. On Tuesday when she became sick and she did not go to
school, the appellant
phoned N[…] and informed her that she
was sick and she did not go to school.
[10] She
testified that on Tuesday when the incident happened she did not
report it to any person. The appellant
threatened to kill her if she
reported the incident. Her aunt V[…] on Wednesday noticed that
she was bleeding from her vagina
and from her nose. She asked her
what the problem was. She did not tell her because she thought she
would question the appellant
and the appellant would shoot her. On
Tuesday, she slept at L[…]'s home. L[…] did not notice
that she was bleeding
because she had taken a bath in the afternoon.
Nothing happened on Wednesday. She was bleeding from her vagina and
nose. Her aunt
V[…] noticed on Wednesday that she was bleeding
when she saw her skirt stained with blood at the back. She called and
asked
her what was wrong. She told her that there was something wrong
but she would not tell her what it was, she would tell her aunt
N[…]
because if she told her she would call the appellant and the
appellant would shoot her. She did not phone her aunt
N[…] in
Johannesburg. N[…] (she referred to as her mother) arrived on
Thursday afternoon. The appellant called her
aunt N[…] and he
told her that she was sick. The appellant noticed that something was
wrong with her because he saw her
sleeping and he asked her what was
the problem, she told him she was feeling sick. Her aunt N[…]
arrived on Thursday afternoon,
she sat with her and she did not get a
chance to tell her because the appellant was with them. They then
went to Jozini to get
some grocery. It was her, aunt N[…],
aunt V[…] and the appellant. On Friday aunt N[…] asked
her what was the
problem, she told her that they made her lie down.
She asked her who and she could not answer she was crying. It was in
the house
and she was standing. The appellant was standing on the
door away from her aunt. She was scared to tell her aunt. Her aunt
said
they must go and look for a traditional medicine for her. Her
aunt N[…] is a traditional healer. They all went and they left
her with aunt L[…]. They came back with the traditional
medicine. L[…] told her that she sensed there was something
wrong. She explained to her that when she was left with the appellant
at home he wanted to sleep with her and she refused. He then
forced
her to sleep with her. Aunt L[…] after the appellant returned
from fetching the traditional medicine asked him what
was wrong. She
did not recall what he said. When they reached her home, aunt N[…]
and the appellant took her to the clinic
at KwaMbuzi. .
[11] She
testified that at KwaMbuzi clinic a male gave her a card to take to
the hospital. She was told to get
into an ambulance with her aunt.
The appellant wanted to go with them. The male person Sangweni said
it was not allowed that two
persons that are not sick board an
ambulance. Her aunt and appellant argued as to who should go with her
in an ambulance. Sangweni
suggested that the appellant fetch jerseys
for them but the appellant refused. She explained to Sangweni what
happened to her.
She told Sangweni that the appellant had sexual
intercourse with her. The ambulance arrived. She went with aunt N[…]
to
lngwavuma hospital. The doctor at the hospital examined her. She
was still bleeding in her vagina and nose. She was told that she
suffered from a heart condition and she was given tablets. The police
interviewed her and she made a statement on the same day.
The doctor
asked her but she did not understand some aspects of the questions.
She felt confused; she does not know what confused
her. If the doctor
wrote that she said she was raped on the 10 th and 13 th it means she
said a wrong date because she did not
know. The police asked her the
date of the incident, she told them that her mind was not well and
she could not recall. However,
she told them that it happened on
Sunday and on Tuesday again. Her statement mentioned 11 February and
13 February, she did not
know exactly what she was saying because she
was traumatised. She testified that she arrived from Johannesburg on
Saturday; the
incident took place on Sunday following that Saturday.
Nothing happened on Monday and it happened again on Tuesday of the
same
week and her aunt N[…] arrived on Thursday of the same
week. The doctor examined her on Friday of the same week. The first
person she told is aunt L[…]. She informed her aunt N[…]
on the way to hospital when she questioned her who did this.
She saw
on both occasions the appellant inserting the penis into her vagina
because he did that before he covered her face. She
knew that the
appellant carried a firearm. She before the incidents did not have
any problem with the appellant. Before the incidents,
there was a
problem between the appellant and aunt N[…]. N[…] told
her in 2000 that the appellant had had slept with
N1[…] and
K[…] their children. Since the incident, she was bleeding from
her vagina. She did not have a boyfriend
and she was still staying
with aunt N[…] in Johannesburg. She did not know whether the
appellant wore a condom in the first
incident and she did not know
whether on both occasions he ejaculated or not. She felt wet and
found a white substance in her vagina.
[12] The
complainant undercrosss-examination testified as follows. She started
staying with the appellant and aunt
N[…] in 2005. Both her
parents had passed away. . She first stayed with her grandmother who
failed to look after her because
she was abusing liquor. She knew
Thulani who was her uncle and he was staying with her grandmother.
Her mother, before she died,
explained to her about the quarrel
between the appellant and aunt N[…]. She herself saw what
happened in 2005, the appellant
slept with both N1[…] and
K[…]. The problem was between aunt N[…] and the
appellant. The appellant shot aunt
N[…] and the bullet
penetrated through a shack. Her mother told her just before she died
that she was born in 1991 and the
hospital file relating to her birth
could not found. Aunt N[…] told her that she was born before
N1[…] and N1[…]
is fifteen (15) years old that month.
She stated that she arrived on Saturday and she slept at the home,
her grandmother was present
and she was coming to dig a traditional
medicine. It is aunt N[…]'s and the appellant's homestead but
it was still under
construction. She slept with her grandmother in a
rondavel and the appellant slept in another structure. The
grandmother left on
Sunday at 14h00. The appellant took the
grandmother to the station or taxi stop, the incident happened after
his return. It was
her biological grandmother but not the one who
abused liquor. She said the appellant raped her; she would not
fabricate a story.
She said she saw him undressing himself and then
he inserted his penis in her vagina, but she did not know what he was
doing, she
only felt something, which was just moving. She did not
see everything because he closed her eyes. She felt movements inside
her
vagina. In the first incident, she did not see, she saw him
undressing himself. The second occasion he undressed her the panty,
he undressed himself his trousers, climbed on her, and he took the
penis and inserted it in her vagina before he covered her face.
He
put on the condom before he climbed on her. She did not recall
whether the doctor asked her whether a condom was used. She cannot
explain why the doctor wrote that no condom was used. When it was put
to her that she told the doctor that no condom was used,
she said did
not remember whether she told the doctor that or not. Asked why did
she tell the police in her statement that on the
second occasion she
was raped on the bed if she was raped on the mat, she said she told
the police that she was sitting on the
mat, pushed and raped on the
mat. She said she did not tell the police to write 'I tried to run to
the door. He pulled me and pushed
me to the bed'. She said she did
try to run away to the door, the appellant pulled her.
[13] The
complainant when asked, having been raped and pointed at with a
firearm, why did she return to the appellant,
said she did not go
back, when she came back from school she went to her aunt, when she
went there she found the appellant was
already there. She said her
aunt L[…]'s husband T[…] told her that the appellant
said she could go there when she
is coming back from school to cook
for him because he did not eat the previous night. She said she went
there with her aunt's child
but the child left her and the appellant
raped her. She said on Saturday they found the grandmother in the
smaller homestead and
she slept with the grandmother. They, herself,
aunts N[…] and V[…] and the appellant went to the
clinic and they
sat on the benches. Initially the appellant refused
to accompany them to the clinic, he said he was not going there
because if
things happened they do not tell him. Aunt Nomsa persuaded
him to accompany them. At the clinic, the appellant was angry with
aunt
N[…]. he even drew a firearm, and he threatened to shoot
her. At home the appellant did not draw a firearm on aunt N[…].
The appellant went with her and aunt N[…] to buy grocery at
Jozini. She related the story to L[…] after aunt N[…]
had arrived. Her aunt N[…] when she arrived asked what she was
suffering from; she kept quiet because she was scared and
afraid to
tell her. When the incidents took place, she had not yet started
menstruating. It was her first time to have sexual intercourse.
It
was painful on the first occasion but she did not observe any
injuries, she observed blood on the second occasion. She went
to the
clinic and they gave her tablets for bleeding. She did not have any
boyfriend and she knew nothing about Thulani fetching
her from a
boyfriend. She denied that she was falsely implicating the appellant
because of the problems between the appellant and
her aunt N[…].
She said V[…] did not stay in the homestead, she stayed with
her those few days, she was not watching
the homestead, and she is
just a member of that homestead. On the days of the incidents, she
was present. She did not report to
her because when the incident took
place she was not present, but when they went to the clinic, she was
present. She had gone to
her mother. She said she could not recall
whether she came back on the same day Tuesday afternoon. She did not
report to her when
she came back because the appellant had threatened
her. When aunt N[…] arrived, she did not see how they slept in
the main
house, she slept with her aunty in the rondavel. Friday
morning, aunt N[…] came to them to find out how she slept. The
appellant
stood nearby. V[…] arrived after sunset after the
appellant had raped her.
[14] N[…]
testified as follows. She stayed in Johannesburg. The appellant who
is her husband stayed at Emathayini
with V[…] and the
complainant. On 22 February 2007, the appellant phoned her and told
her that the complainant was sick.
She borrowed money and after a day
on Thursday, she arrived. She found the appellant sitting under a
small tree. She went passed
to the house. The children came to meet
with her. They took out a mat and they sat in a shade under the tree.
The children advised
her that they were well. She asked the appellant
to go and sit with her in the shade of the house. She then requested
the appellant
to accompany her to Jozini to buy tile cement. They
proceeded to Jozini. They bought tile cement and the appellant went
with her
to buy some groceries. It was she, the appellant. V[…]
and the complainant. They came back. She questioned the complainant
about how she was feeling; the complainant told her that she was
losing power. She told her that her uterus was painful and she
was
bleeding from her nose and from her private part. They were all
sitting in the dining room. She had noticed blood coming from
her
whilst they were at Jozini when she saw bloodstains. She boiled water
and told the complainant to drink it. They cooked, ate
and slept. She
slept with the appellant. The complainant slept alone. In the
morning, she woke and went to wake up the children
to prepare to
leave to take the complainant to hospital. The appellant woke up with
her. She knocked and V[…] opened for
her. V[…] told her
that the complainant did not sleep because she was crying at night.
The appellant was with her. The complainant
told her that she was
losing power and she had a headache. The complainant said they had
let her lie down and it was painful. She
asked her who are they. The
complainant did not explain. She entered the room in which they were
sleeping. She found on the kitchen
sink a piece of paper with phone
numbers. She asked the complainant to whom the telephone numbers
belonged. The complainant did
not respond.
[15] She
stated that they prepared tea. They then went to dig the traditional
medicine. They went with the appellant
and the children in his
vehicle. They stopped at L[…]'s place. L[…] came and
greeted them. She told L[…] about
the complainant's condition.
She asked L[…] to remain with the complainant. They went to
the forest and dug the traditional
medicine. They returned. L[…]
asked the appellant what was wrong with the family because she found
that something was happening.
The appellant asked whether they were
now accusing him of abusing the complainant. They proceeded to their
home. She asked the
appellant to take the complainant to the clinic
since she had to return to Johannesburg. The appellant said he was
tired to be
controlled by women because if the children are sick,
they did not tell him. He said if he shoots himself, he would shoot
them
too. He went to the house and he took a firearm. She told the
children to board the vehicle because she did not know who was
fighting
with the appellant. The appellant came to the vehicle and he
drove them to the clinic. The male nurse Sangweni attended to the
complainant at the clinic. Sangweni called her and the appellant went
with her. Sangweni told them that the complainant is to be
taken to
hospital but in the ambulance, one person can accompany the
complainant. The appellant told Sangweni that he needed to
be present
when the doctor examined the complainant because since 2000, he is in
conflict with her and he is accused of all sort
of things. The
appellant was angry and he pointed her with a firearm. Sangweni said
that was the hospital policy. She accompanied
the complainant in the
ambulance. It took them to the hospital. The appellant was left
behind.
[16] She
testified that the doctor at the hospital examined the complainant.
Police arrived with the appellant.
In the ambulance, the complainant
explained to her what happened. She told her that the appellant said
he wanted to sleep with
her because he had already slept with others.
She said it happened on Sunday. She said he let her lie on the bed on
their bedroom.
He had followed her when she went to cook. She said
she had told the complainant not to sleep there but to sleep at
L[…]'s
homestead as she was alone with the appellant. The
complainant told her 'the appellant pushed onto the bed. He massaged
her and
he undressed her of her panty. She refused and he threatened
to shoot her and that she must not tell anyone about the matter. He
had a firearm in his possession. He closed her eyes and climbed on
her. He took out his penis and he inserted it into her vagina.
After
that, he told her to go to L[…]'s home. In the morning, the
appellant came to L[…]'s home and took the complainant
to look
for a school for her. She came back and she was afraid to sleep in
the house. T[…] woke her up to go and cook for
the appellant.
She spent the night at L[…]'s place. She woke up at 2o'clock
in the morning, woken by T[…] L[…]'s
husband to go and
cook for the appellant. She went to the home of the appellant. She
went to the house wherein she had to cook.
The appellant followed
her. He let her lie down. He put on a condom. He took out his penis
and he inserted it into her vagina.
She started to bleed and she was
unable to walk'.
[17] She
testified that the dates mentioned in the medical report the 10
th
and 13th means that the complainant is confusing dates. She did not
believe it happened on those dates. She did not agree that
the doctor
examined the complainant 10 days after the last incident. She had a
problem with appellant in 2000. She found him in
the house or in a
room sleeping with a child. The name of the child is K[…]. He
had undressed her of her panty and he had
let her lie down, he was on
top of her with a firearm under the bed. The matter was resolved. The
charge was laid and it was withdrawn.
The appellant after he
assaulted some children, there was a gathering and some sort of
compensation agreed where he bought some
cattle or cows. He was just
apologising saying what happened is a mistake. She said she did not
accept the apology and she told
him that she was not forgiving him.
[18] N[…]
under cross-examination stated as follows. The appellant and the
complainant reported to her that
from Johannesburg to Emathayini they
travelled well. The appellant told her that they found aunty Botha
Sibiya, the complainant's
grandmother. The complainant to her
knowledge on the day they arrived spent the night in the big house in
the rondavel with her
grandmother. It is correct V[…] came on
the Tuesday. The appellant came from Johannesburg to Emathayini to
install tiles.
The tile cement was finished hence going to buy it at
Jozini and she bought 11 bags. She left the complainant with L[…]
and she asked L[…] to question the complainant because L[…]
saw that she was angry. L[…] questioned the appellant
and she
said what was going on because it appeared there was violence between
him and the children. It was put to her that L[…]
said to the
appellant the complainant suspected that he was the cause of her
condition. The appellant said 'oh they are going to
say it is me'.
She said he quarrelled with her when she said he must take the child
to the clinic. She said she saw the appellant
with her own eyes on
top of a child. She did not lay a charge against him because he
intimidated her with a firearm. N1[…]
laid a charge, the case
got finished because there was no follow up. The police did not
arrest the appellant. She said three herd
of cattle were slaughtered.
She did not know the age of the complainant but the complainant told
her that she was fifteen (15)
years old. She denied that the
appellant and her had a conflict about her healing trip to Empangeni.
She said at the hospital,
it was said the bleeding of the complainant
is because she was raped and that her eyes were damaged inside
because she was raped.
The appellant pointed her with a firearm on
five occasions. He intimidated her and she did not lay criminal
charges against him.
[19] V[…]
testified as follows. The appellant was her sister N[…]'s
husband. They stayed together
with the appellant at Emathayini. She
was not present on Saturday 17 February 2007. She arrived at home on
Tuesday 20 February
2007. She was from Makhayana. She arrived at
17h00. She found the appellant and the complainant at home. The
complainant was from
school and she was supposed to prepare to go to
school the following day. On Wednesday, the complainant did not go to
school. She
was crying. She called her behind the house and asked her
what was wrong. She said she was sick suffering from a headache and
feeling
dizzy, and her uterus was painful. She reported the condition
of the complainant to the appellant. The appellant said he knew
nothing
about that. He stood up and he phoned her sister N[…]
who was in Johannesburg. N[…] asked the appellant what was
wrong with the complainant because when he left with her she was
well. N[…] did not say that she would come but they saw
her
arriving on Thursday. She ran to meet N[…] but the complainant
was unable to stand up she said she felt pain in the
uterus. N[…]
sat with the appellant in the shade. The complainant told N[…]
that she had a headache, felt dizzy,
and pain in her uterus. The
appellant told N[…] that there was no food in the house. N[…]
asked him to accompany
her to Jozini to buy some grocery. They
proceeded to Jozini. They bought bags of cement leaving her and the
complainant in the
vehicle. They returned with cement. N[…]
asked her to go with her to buy grocery. The appellant followed them
and the complainant
went with them. They finished and they went home.
They arrived at home, cooked, ate and went to sleep. She slept with
the complainant.
In the morning, N[…] came to where they were
sleeping and she asked how they slept. The appellant came with N[…].
She told N[…] that the complainant did not sleep well, she was
crying. She woke up and she prepared tea. The appellant drank
the tea
but N[…] did not drink the tea because the complainant had
told her that she had been raped. She, the complainant
told N[…]
when she questioner her, that she had been let to lie down. She told
N[…] when the appellant was standing
next to N[…].
[20] V[…]
testified that after they finished drinking tea, N[…] said
they must go to dig traditional
herbs. It was she, N[…] and
the appellant. They left the complainant at L[…]'s place. She
was left behind because
she could not walk and she was bleeding on
her private part. N[…] requested the appellant to buy water
for her in a nearby
shop. The appellant turned at the door and he
said there was no water. N[…] again asked the appellant to go
and buy cold
drinks to be drunk at the forest. The appellant went and
bought the cold drinks. They did not drink cold drinks at the forest
but
they drank it at home. On return from the bush they went via
L[…]'s place and to take back the complainant. L[…]
asked the appellant by saying what was going on my brother-in-law it
seems as if you were not in good terms at home. The appellant
became
furious; he said every time he is left with children he is accused of
abusing them although he had done nothing. They proceeded
home.
[21] She
testified that they arrived at home. N[…] asked the appellant
whether they could take the complainant
to the clinic. The appellant
said he was tired of being controlled by women. He stood up and he
went to his house. He put a firearm
on his waist. He took the key and
he got into the vehicle. They also boarded the vehicle. They drove to
the clinic. The complainant
was attended to at the clinic. They
called N[…] and the appellant went with N[…]. N[…]
and the appellant returned
and said V[…] and the appellant
could go back home. The appellant drew a firearm and pointed it at
N[…]. He also
pointed the firearm at himself. He said he would
be buried outside the premises of the homestead. He then got into the
vehicle
and he drove away. N[…] asked a lift for her in the
ambulance to Emathayinin where she was dropped. In the ambulance, the
complainant did not say anything to N[…].
[22] V[…]
under cross-examination testified as follows. She left the homestead
on Saturday early in the
morning. She left nobody behind. She stayed
alone when the appellant and N[…] were in Johannesburg. The
grandmother did
not arrive that weekend when she left. When she
arrived the grandmother had gone, the complainant told her. When she
arrived, the
complainant did not report anything to her. The
complainant said a traditional healer in a taxi gave the piece of
paper with telephone
numbers to her. She did not hear Sangweni saying
only one person can accompany the complainant in an ambulance to the
hospital.
She said the appellant was not waiting on the road with
jerseys when the ambulance drove passed.
[23] L[…]
testified as follows. On 23 February 2007 she was where she traded.
The appellant came with N[…],
V[…] and the complainant.
The appellant went to buy something from the shop. She saw that N[…]
was not in a good
mood and the complainant too. She asked N[…]
what was wrong. N[…] said she must ask the complainant. N[…]
followed the appellant to the shop. The appellant, N[…] and
V[…] left to dig the traditional medicine. Before they
left,
she saw bloodstains on the back of the complainant and she told N[…].
N[…] gave her R7. 00 to buy sanitary
pads for the complainant.
She gave clothing to the complainant to cover herself and she went
and bought sanitary pads for her.
The complainant told her what
happened. She told her that the appellant pointed a firearm at her
and let her to lie down. She did
not tell her when it took place, but
she said it took place at the appellant's homestead in his room on
his bed. She understood
that the complainant was saying that the
appellant raped her. She told her it took place on Sunday or Monday
after the departure
of the aunty. The aunty is MaSibiya. She did not
tell her how many times it occurred. She said N[…] and the
appellant returned.
She told him that the complainant reported some
sort of abuse taking place at his home. The appellant said he had
already seen
that he would be accused. He became angry and he left.
They drove away.
[24] L[…]
under cross-examination testified as follows. She did not tell N[…]
what the complainant
told her because they were in a hurry. She made
the statement to the police on the same day she testified. She
remembers that it
happened on Friday, 23rd. although the dates are
confused. She became confused and surprised when the complainant told
her. She
did not ask the complainant how it happened because she was
confused. Her home is near the home of the appellant. The complainant
spent two nights at her home, it was on a Sunday.. She did not
remember when the complainant returned with the appellant from
Johannesburg. However, she remembers that the appellant came to her
home with the complainant. She knows that there was aunty at
the
homestead when the appellant and the complainant arrived. She saw her
leaving on Sunday. The complainant spent the two nights
at her home
because she would have been alone with the appellant at his home.
Initially, when the appellant brought to her home
the complainant, he
had to come the following morning to register the complainant at
school.
[25] Bonginkosi
Sidwell Sangweni testified as follows. He was employed as a nurse at
KwaMbuzi clinic. On 23 February
2007, he was on duty. At about 15h
00, he attended to the complainant. She was feeling dizzy and had
pains in her uterus. The complainant
explained to him that there was
a male person who had raped her. He therefore had to transfer the
complainant to the hospital to
be examined by the doctor. She said
she knew the person who raped her. She told him that it was her
father, the appellant. He did
not tell N[…] that the
complainant said she was raped by the appellant to avoid a conflict.
He advised N[…] that
warm clothes must be fetched for the
complainant. A misunderstanding ensued because the appellant did not
want to go and fetch
warm clothes. He said he could see that N[…]
and the complainant were fabricating a case against him. He then
arranged for
an ambulance to take the complainant and N[…] to
hospital. He said it is correct that the ambulance takes the person
who
is sick and one companion, but that was not the issue, which
caused the conflict. He noticed that the complainant was in deep pain
and shock. He did not see the appellant pointing a firearm at any
person. He could not recall any problem of bleeding to the
complainant.
[26] The
appellant testified as follows. The complainant was his child
although not a biological child. Her mother
passed away and he did
not know her father. She was found in a sugarcane field near the home
of his wife. She had no place to stay.
They took her and stayed with
her. They were staying with her in Johannesburg. He did not know how
old the complainant was. . On
18 February 2007 he was at Emathayini.
They had a home in Johannesburg and at Emathayini. He came to
Emathayini with complainant
on Saturday. There was nobody. He phoned
N[…]. N[…] told her to take the complainant to her aunt
L[…]. He
took the complainant to L[…]. He sent a
message with T[…] to tell the complainant to come back and
cook. The complainant
came in the late afternoon to start cooking. He
had never raped the complainant. He suspected that it was planned
between N[…]
and the complainant to falsely accuse him of
raping the complainant. He did not try to ensure that the complainant
did not get
an opportunity to report anything to N[…]. N[…]
wanted him to go with her in his vehicle when he is going to do the
healing, but not pay for the transport costs. No charges were ever
laid against him for abusing his children because he did not
abuse
any child. He did not refuse to take the complainant to the clinic.
He said they must wait for him to finish the tile mix
he had mixed.
He always carried his firearm on him but he did not point N[…]
or any person with a firearm. He wanted to
go with those accompanying
the complainant to the hospital but he was told that one person could
accompany the complainant. His
sister-in-law told him that the
complainant was sick and he phoned N[…]. He was told that the
complainant was menstruating
and feeling pain in her uterus.
[27] The
appellant under cross-examination testified as follows. He came with
the complainant to Emathayini because
N[…] had arranged for
her to come and stay with her aunt. He had to register her at school.
She respected him as her father.
He took her to school on a Monday.
On a Wednesday morning she told him she was not going to school, she
was sick. The school started
at 14h00 and ended at 17h00. She told
him she had stomachache. V[…] told him that the complainant
was sick, the Wednesday
the following week. N[…] arrived on
Thursday the following week. The complainant said he raped her on the
11
th
and 13
th
and he was arrested on 23
rd
.
The complainant's mother N[…] did not arrive in the week the
complainant first reported to be sick. He took her when she
said she
was sick to her aunt's place for her to explain everything to her
aunt. V[…] told her on Wednesday the week N[…]
came
that the complainant was menstruating. He did not know why if the
complainant is fabricating a false case against him with
N[…]
would tell L[…] that he raped her. At the clinic, Sangweni
told him that the complainant said she was raped
at home. He did not
know why the complainant said on the first occasion no condom was
used and said a condom was used on the second
occasion. The
complainant would sleep at L[…]'s place, go to school, come
and cook and go back to L[…]'s place.
[28] The
trial commenced before the regional magistrate on 25 February 2008.
It was finalised on 16 April 2008.
The record indicates that the
matter went through an application for leave to appeal and a petition
for leave to appeal. The application
for leave to appeal was filed on
22 February 2012; the regional magistrate heard it on 1 February
2016. Sections 10 and 11 of the
Judicial Matters Amendment Act 42 of
2013 deemed to have come into operation on 1 April 2010; grants to
everybody sentence to life
imprisonment by a regional court an
automatic right of appeal. It is regrettable that it has taken so
long to have the appellant's
appeal heard. The head of each
magistrate's court must have processes in place to ensure that
applications for leave to appeal
and matters taken on appeal are
processed without unnecessary delays. It must be borne in mind that a
sentence imposed is executed
pending the outcome of an appeal. If the
appeal succeeds, there is no recourse for the sentence served. It is
a serious dereliction
of duty to fail to avoid delays in the
processing of applications for leave to appeal and matters going on
appeal.
[29] The
learned regional magistrate stated that in his final analysis of all
the evidence before the court he
was satisfied that all the witnesses
gave evidence in a clear and satisfactory manner and they explained
the contradictions. He
found no reason why N[…] the wife of
the appellant would falsely implicate the appellant. He found that
the evidence of
the complainant is clear that she was very afraid of
the appellant. He referred to a discrepancy relating to the use of a
condom
and that the doctor was told that the incidents took place on
10 and 13
th
. He held that the discrepancies are explained
by the fact the complainant was traumatised. He found that the State
version was
more probable than the appellant's version.
[30] The
hearing of an appeal against findings of fact is guided by the
principle that in the absence of demonstrable
and material
misdirection by the trial court, its findings of fact are presumed to
be correct and will only be disregarded if the
recorded evidence
shows them to be clearly wrong. See
S v Hadebe and Others
1998
(1) SACR 422(SCA)
p426b;
R v Dhlumayo and another
1948 (2) SA
677(A).
[31] The
conviction of the appellant. whether he had sexual intercourse with
the complainant, and if so, whether
it was without the consent of the
complainant, is founded on the evidence of the complainant. It was
the evidence of a single witness
and a child. The age of the
complainant was unknown but it can be accepted that she was around
fifteen (15) years old, which means
she was a child. The evidence of
the complainant as evidence of a child is required to be approached
with great caution. See
R v Manda
1951 (3) SA 158
(A) at 162H
it was held that the evidence of young children should be accepted
with great caution. A child may not understand the
nature or
recognise the obligation of an oath or affirmation and yet may appear
to the court to be more than ordinarily intelligent,
observant and
honest. It was held that the danger inherent in reliance upon the
uncorroborated evidence of as young child must
not be underrated. The
imaginativeness and suggestibility of children are only two of a
number of elements that require their evidence
to be scrutinised with
care amounting to perhaps suspicion. The trial court must fully
appreciate the danger inherent in the acceptance
of such evidence,
and where there is a reason to suppose that such appreciation was
absent, a court of appeal may hold that the
conviction should not be
sustained. See
Manda
at 163E. See also
S v Dyira
2010
(1) SACR 78
(EGHC) at 82.
[32] The
question is whether the evidence of the complainant was approached
with the necessary caution. Related
to the said question is whether
it was clear and satisfactory in all material respects. There is no
indication on the record that
the learned regional magistrate warned
himself of the need to approach the evidence with caution. The
following unsatisfactory
features in the evidence were not noted and
no weight given to them, namely;
1. The
charge alleges that the complainant was raped on diverse occasions
during the period 1
February 2007 to 20 February 2007. It was not
explained why the charge was framed in this manner if there was
certainty that the
complainant was raped on two occasions on 18 and
20 February 2007.
2. The
regional magistrate convicted the appellant in that he raped the
complainant on 18 and
20 February 2007. The doctor who examined the
complainant on 23 February 2007 was told and recorded that the
complainant was raped
on the 11
th
and the 13
th
February 2007. The complainant and the appellant arrived from
Johannesburg on Saturday 10 February 2007. On the evidence of the
complainant, she was raped on the following day on Sunday and the
Tuesday following that Sunday. Therefore, all the evidence accepted
by the regional magistrate pointing to the rape being committed on 18
and 20 February was materially contradictory to the complainant's
evidence and the report to the doctor. Despite the prosecutor trying
his best to determine the dates on which the complainant was
allegedly raped it remained confused.
3. The
first report L[…] understood that the complainant was
reporting that she was raped
in the week of the report on either 18
or 20 February 2007. Sangweni also understood that complainant was
reporting a rape that
took place in the same week he saw the
complainant. That is the reason both L[…] and Sangweni say the
complainant appeared
traumatised and shock. The complainant made
false reports to both L[…] and Sangweni.
4. The
complainant wanted to explain her sickness found on Wednesday of the
week N[…] arrived
as caused by rapes, which occurred in the
course of that week. If the rapes occurred the previous week it is
inexplicable why the
complainant was creating the impression that
they occurred in a different week.
5. The
complainant in her police statement said she was raped on both
occasion on the bed but
in court she claimed that the second rape
took place on the floor on a matt.
6. The
complainant to both L[…] and Sangweni did not report that she
was raped on two
different occasions,
7. If
the complainant a virgin was raped on 18 and 20th and seen by the
doctor on 23 February,
2007 it is inexplicable that the doctor found
no evidence of forceful sexual penetration.
8. The
complainant was sleeping away from the appellant at her aunt L[…]'s
place. There
is no explanation why if she could report to L[…]
as she did, why she did not report when the rapes occurred.
9. The
complainant if she was raped on Sunday it is not explained why she
was prepared to return to
the appellant when she knew that the
appellant was alone and he would probable rape her again.
10. The
complainant stated that V[…] returned in the afternoon of the
Tuesday on which she was raped
and thereafter she was with V[…]
and sleeping with her. She did not explain why she did not report the
rapes to V[…].
11. The
complainant was found with telephone numbers of other people. It is
not explained why she did not
phone N[…] and report the rape,
the delay in reporting it suggests that it was a fabrication. In
S
v De Villiers en Ander
1999 (1) SACR 297(O)
at 306b it was
held that the longer the delay, the greater the prospect of
fabrication and the more likely the possibility of untrustworthiness
or unreliability.
[33] The
onus was on the State to prove the guilt of the appellant beyond
reasonable doubt. It relied on the evidence
of the complainant to
prove the commission of the offence and that the appellant committed
it. An established rule of practice
requires the evidence of a single
witness to be approached with special caution. The danger is that
evidence of a single witness
cannot be checked against other
evidence, a fact known to the single witness.
[34] The
learned regional magistrate although he found that the evidence of
the complainant was clear, he did not
deal with the inconsistencies
in the evidence of the complainant. He overlooked that her evidence
was required to be approached
with caution. Had he done so, he would
not have found that her evidence was clear and satisfactory in all
material respects. It
is not the labels that are given to the
evidence by a judicial officer that count. Evidence as it appears on
record must be clear
and satisfactory in all material respects. The
exercise of caution entails scrutiny of the evidence, noting
discrepancies and attaching
due weight to the discrepancies that are
found. See
R v Mokoena
1932 OPD 79
at 80;
R v Mokoena
1956
(3) SA 81
(A) at 85-86;
S
v Webber
1971 (3) SA 754
(A)
at 757-759;
Stevens v S
[2005] 1 All SA 1
(SCA) para 17;
S
v Artman
&
another
1968 (3) SA 339
(A) at 340H;
[35] The
evidence looked at holistically and approached with caution exhibited
numerous unsatisfactory features.
It fell short of proving the guilt
of the appellant beyond reasonable doubt. The appellant had no onus
to prove his innocence.
Even if his version is improbable, if it is
reasonably possible true, he is entitled to be acquitted. The
appellant's conviction
falls to be set aside.
[36] I
propose the following order:
1. The
appeal against conviction is upheld.
2. The
conviction and sentence are set aside.
2. The
order of the trial court is substituted thereof with:
'Not guilty and
discharged'.
Mngadi,
J
I
agree, it is so ordered.
Bezuidenhout,
J
APPEARANCES
Case
Number: AR
49/20
For
the Appellant: Mr.
X. Sindane
Instructed
by: Pietermaritzburg
Justice Centre
PIETERMARITZBURG
For
the respondent: Mr.
Mcanyana
Instructed
by: Deputy
Director of Public Prosecutions
PIETERMARITZBURG
Heard
on: 14
May 2021
Judgment
delivered on:
With
the consent of the parties, the matter disposed of without oral
arguments.