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[2021] ZAECBHC 4
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S v Makayi (CC 13/2019) [2021] ZAECBHC 4 (25 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
REPORTABLE
CASE
NO. CC 13/2019
In
the matter between:
THE
STATE
and
LUTHANDO
MAKAYI
Accused
JUDGMENT
Criminal
trial –
summary of substantial facts –
incorrect information – whether affecting the accused’s
right to a fair trial –
duties of prosecutors
Rape
–
elements of - intention – whether intention
can be in the form of dolus eventualis
STRETCH
J.:
[1]
For reasons which will soon become apparent, it is necessary for me
to
reproduce the indictment in this matter. It reads as follows:
INDICTMENT
The Acting Director of
Public Prosecutions for the Eastern Cape Local Division of the High
Court of South Africa, Bhisho, who prosecutes
for and in the name of
the State, hereby informs this Honourable Court that:
LUTHANDO THANDO
MAKAYI,
a 43 year old male person, residing at [....] NU2,
Mdantsane
(hereinafter called “the
accused”) is guilty of the crime of:
RAPE IN CONTRAVENTION
OF SECTION 3 READ WITH SECTION 1, 56(1), 57, 58, 59, 60 AND 68(2) OF
THE CRIMINAL LAW (SEXUAL OFFENCES AND
RELATED MATTERS) AMENDMENT ACT
32 OF 2007 (“the Sexual Offences Act”)
In that on or about the
31
st
of March 2018 and at or near Duma Nokwe B, NU2,
Mdantsane, in the district of Mdantsane, the accused did unlawfully
and intentionally
commit an act of sexual penetration with the
complainant,
O[....] T[....]
, a 6 year old female person, by
inserting his penis into her vagina and anus without the consent of
the said complainant.
In the event of a
conviction the said Acting Director of Public Prosecutions requests
sentence against the accused according to
law, where the provisions
of
section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
relating to a discretionary minimum sentence of life imprisonment
will apply, in that the victim was raped whilst being a person
under
the age of 16 years old.
A summary of the
substantial facts of the case as well as a list of the names and
addresses of the State witnesses are attached
hereto in terms of
section 14
4(3) of the
Criminal Procedure Act, 51 of 1977
.
Signed on this 27
th
day of August 2019
I GOBERDAN
ACTING DIRECTOR OF PUBLIC
PROSECUTIONS
BHISHO / PORT ELIZABETH /
GRAHAMSTOWN
SUMMARY
OF SUBSTANTIAL FACTS
1.
On the 31
st
of March 2018 the complainant and her siblings
were left alone at home by their mother when she left for work.
2.
The accused
entered the shack after that and raped the complainant by inserting
his penis into her vagina, and anus.
[1]
3.
After that he left the shack and the victim went to urinate.
4.
She cried and her siblings woke up and she reported to them that she
had been
raped by the accused.
5.
They in turn reported the matter to a neighbour who contacted their
mother and
the police.
6.
The accused was arrested on the same day.
[2]
The charge outlined above was put to the accused. He pleaded not
guilty,
explaining that he did not deny that he was at the
complainant’s home on that day. He found the children at home
as their
mother had gone to work. He denied having sex with or
inserting his penis into the vagina or anus of the complainant. He
left there
and went to buy bread. He was informed of the allegation
upon his return.
[3]
The accused agreed that the admissions contained in his plea
explanation
could be recorded as formal admissions in terms of s 220
of the Criminal Procedure Act 51 of 1977 (“the CPA”),
confirming
that the only issue was whether he raped the complainant.
[4]
The prosecution did not deliver an opening address. An application
for
the complainant and her two siblings to testify from a room
adjoining the court room via CCTV with the assistance of an
intermediary
(Ms Tenge) was not opposed and duly granted.
[5]
The complainant’s oldest sibling, A[....] T[....] (who is 13
now
but was ten when the accused was arrested), appeared to
understand the difference between right and wrong as well as the
difference
between the truth and a lie. She did not, however,
understand the import of taking the oath, and was admonished to speak
the truth.
[6]
She said that she had known the accused for a short time before his
arrest.
He had built the shack in which they were living at the time,
and used to visit them from time to time.
[7]
On 31 March 2018 she woke up early. The complainant was crying saying
it was painful to urinate. She and her other sibling, L[....],
enquired from the child why she was crying. The complainant did not
respond. They asked her again. She said that the accused had been
there. He sat beside her and asked whether she was not feeling
lonely
or drowsy and she said no. The accused took her and put her on his
lap. He shook her around.
[8]
Upon hearing this, they went to the neighbour, Nonci, and told her.
Nonci
phoned their mother. She (the witness) spoke to their mother
and told her that the complainant had said that it was painful to
urinate because of the accused. Their mother warned them not to wash
the complainant and said that she was on her way. They waited
at
Nonci’s house until their mother arrived, as well as their
paternal aunt. They took the complainant to the hospital.
[9]
A[....] testified that she herself, did not see the accused that day,
but that it was not usual for the complainant to say that it was
painful to urinate. She said that the accused would sometimes visit
them in the daytime when their mother was at work.
[10]
A[....]’s
younger sister, L[....], who was 11 when she testified, was also
admonished to speak the truth. She immediately
proceeded to explain
what had transpired before she woke up that morning and was warned to
refrain from doing so. She continued
to describe how the
complainant’s crying woke her that morning, and she saw the
child sitting on the bucket used for urinating.
The accused was
present. He said that the child might be crying because her wound was
painful. She confirmed that the complainant
did have a big wound on
one of her knees and other smaller ones covering her legs.
[2]
She called the child to come and sleep with her and her sister who
were sharing a bed.
[11]
The accused, who had been sitting on their mother’s bed (which
their mother used
to share with the complainant), put on his shoes
and left. He said that he was going to buy bread. He was later
brought back. They
expected him to be there as their mother would
normally give him money to buy bread for them. He sometimes slept on
their mother’s
bed when their mother was present.
[12]
After he had left, the complainant told them that the accused had
arrived and had asked
her if she was not lonely or drowsy, and that
she had said she was not. He put her on his lap. He made movements.
She said that
she cried when he did this. Thereafter it was painful
to urinate. The complainant was wearing a nighty.
[13]
During cross examination it was put to her that when she woke up the
complainant was crying
and the accused was sitting on her bed trying
to console her. The witness replied that when she awoke, the accused
was sitting
on her mother’s bed but the child was on the
urinating bucket. She agreed that when she asked the child why she
was crying,
the accused had said that he had disturbed the child’s
wound, and that it could be that her wounds were painful. He then
said that he was just going to buy bread, and that he would be back.
[14]
It was further put to her that the accused had disturbed the child’s
wound when he
was pulling her blanket in order to make the bed. She
responded that she was unable to comment as she had been asleep. She
could
not remember whether the accused sometimes made her mother’s
bed. She said that they used to lock the exit door to the shack
at
night but then forgot to lock it in the morning after their mother
had gone to work.
[15]
The 34 year old mother of the siblings, A[....]2 T[....] told this
court that the accused
had been known to her since 2017. He had built
the shack in which they had been living at the time from material
which she had
purchased. After she and the girls had moved into the
home which the accused had built for them, she asked her cousin if
the accused
could move into their old shack which belonged to her
cousin. Her cousin agreed.
[16]
She said that on 31March 2018 the complainant was awake when she left
for work early in
the morning (about 5.30) without locking the door
behind her. It was on a weekend. There was no public transport close
by. She
awoke the accused who lived nearby and asked him to escort
her on foot to Hiway taxi rank. He did. While they were waking
together,
his phone kept on ringing. She boarded a taxi at the rank
just before 6.30am.
[17]
She
explained that she had laid charges against the accused because her
neighbour had phoned at about 9am that day and had told
her that
something had happened. When she spoke to L[....] on the phone,
L[....] told her that the complainant had been crying,
and had said
that the accused had done “dirty” things to her.
[3]
[18]
She
responded to this information by phoning the street committee.
Thereafter she phoned the accused who told her that he was at
Hiway.
She asked whether he had money and then asked him to buy some bread
from the Rhino store and bring it to the children. She
then went to
the police who escorted her to her home. The accused was there. He
had been assaulted by the community members. She
did not interact
with him at all. He however spoke to her and said that he did not do
what he was being accused of. The police
took the accused and said
that both he and the complainant had to be taken to Cecilia Makawane
Hospital (“CMH”). The
complainant never told her what had
transpired between her and the accused.
[4]
All that happened was that she asked the child whether it was still
painful to urinate.
[19]
When they reached the hospital a male doctor said that he would take
vaginal swabs. The
complainant refused to part her legs. She had to
have nil per mouth for six hours after which she was anaesthetised.
After the
examination a female doctor told her that something had
been done to the child’s vagina and her anus. The doctor asked
her
what had happened. She responded by relaying what had been told
to her. She spent the night at the hospital with the complainant
who
was discharged the following day.
[20]
She agreed that she sometimes told the accused to collect money from
her home and to buy
bread for them from Rhino store near the Hiway
taxi rank as it was cheaper there. When she did not have money she
would in any
event phone the accused and ask him to buy bread for
them. She denied that the accused ever cleaned their home or made the
beds.
[21]
She admitted that the complainant had healing sores on her legs and
below her left knee.
She was unable to say what had caused them.
[22]
During cross examination it was put to her that the accused had
returned to her house after
he had escorted her to the taxi rank as
there was left over chicken which he wanted to eat. She admitted that
there was left over
chicken at her home. She admitted that the
accused used to visit her house in her presence. She said that he
also went there in
her absence when she asked him to. She denied
however that she had in the past asked the accused to check up on the
girls from
time to time. She denied that he helped with domestic
chores, but when it was put to her that he swept her floor and made
her bed
on 31 March, she replied “I wasn’t there”.
[23]
She said that he was like a brother to her and that she used to
invite him for meals. She
denied that he was her boyfriend. When it
was put to her that she and the accused used to sleep together in her
shack on weekends
when the children were visiting their grandparents,
she said that the accused would sleep there to look after the shack
when she
was doing nightshift and the children were away. But when
she did nightshift when the children were there, they would either
stay
at home and Nonci the neighbour would look after them, or they
would go and stay with Nonci.
[24]
The complainant (O[....] T[....]) is nine years old and in grade
four. On 3 March 2018
she was six, having been born on 12 October
2011. On 30 May 2018 forensic social worker Captain Thomas assessed
her for competency
as a witness, and concluded that she managed to
identify the difference between the truth and lies and that she was
able to distinguish
between right and wrong. After having questioned
her, I arrived at a similar conclusion but had to admonish her, as
she did not
understand the import of taking the oath. She told me
that her friends called her “Matete” and that I could do
the
same.
[25]
The prosecutor had some difficulty in taking Matete back to the
alleged crime scene. She
admitted that she knew who the accused was,
but said that she did not see him on the day he was arrested. The
accused’s representative
agreed that the prosecutor could
refresh the child’s memory by taking her back to the day on
which the accused was present
and she was crying while sitting on the
urinating bucket, as this was in any event, common cause. The
prosecution set the scene
accordingly.
[26]
Thereafter the complainant was asked twice why she was crying on that
day. She failed to
respond and said (changing over from isiXhoza to
English) that she did not understand the question.
[27]
After the child had explained how the accused had entered the house,
she indicated that
she was tired and hungry and wanted to take a
break. Immediately after the break she was asked whether the accused
had said anything
when he entered the bedroom. Her immediate response
was that when he entered the room, he said she must not tell anything
to anyone,
because he was going to kill her. She did not know what it
was that she was not supposed to disclose. She was asked whether the
accused did anything to her. She confirmed that he did.
[28]
Thereafter the prosecution applied for the witness to demonstrate
what had happened to
her with the use of anatomically correct dolls.
She was given four fully dressed dolls: a male and a female adult,
and a male and
a female child. She selected the male adult and the
female child. Thereafter, with some difficulty, she placed the fully
clothed
male doll on his back with the fully clothed female doll
sitting on top of him, facing him, in a straddling position, with his
hands on her waist.
[29]
The prosecutor asked whether anything happened while they were in
that position. The witness
did not respond. She was asked whether she
wanted to say anything. She remained mute.
[30]
Thereafter the witness demonstrated that the nighty she had been
wearing reached just below
her private parts. She confirmed that she
had been wearing panties as well, made from a soft texture. She said
that the accused
was wearing long trousers. She was asked whether she
felt anything. She said yes. When asked what she felt she initially
did not
respond and then said “I don’t know”. When
asked where she felt “this thing”, she replied “in
my sisi”, clarifying that this is the part of her body she uses
for urinating. She was asked again how it felt. She remained
silent.
Then she said that she was thinking, and eventually (after at least
ten seconds) said that it was painful, but that she
did not know what
had caused the pain. When again asked what was causing her pain, she
again replied in English that she did not
understand. The prosecutor
eventually managed to extract from her that when she felt the pain,
her “sisi” was on the
accused’s urinating part.
[31]
At this stage I intervened and suggested that she be permitted to
refer to the anatomically
correct dolls to assist her to identify
body parts. The response from the prosecutor was quite unexpected. I
was addressed from
the bar in the following words: “My lady the
reason why I wanted to use dolls, I wanted her to demonstrate the
position because,
my lady, they were fully dressed, both of them. The
child was dressed up, they were not naked.” The proverbial
horse having
bolted by then, I admonished the prosecutor not to
testify from the bar, and allowed the trial to continue.
[32]
The child was again silent when asked why she had referred to the
accused’s urinating
part. When persistently pressed to explain
what it was that she felt on her “sisi”, she again said
“I do not
know”. The question was repeated. The witness
still did not answer. She was then asked whether the accused had
removed his
trousers. Not knowing where the prosecutor was about to
go, I disallowed the obviously leading and possibly incriminating
question.
When asked where her urinating part was in relation to that
of the accused, she said in English: “I don’t
understand”.
[33]
Thereafter the complainant appeared to be demonstrating something
with the dolls, but the
intermediary’s microphone was not
working and the proceedings had to be aborted, and it was arranged
for the trial to continue
the following day, as the witness was
tired.
[34]
The next day the prosecutor repeated the last question from the day
before, which the witness
had indicated she did not understand. It
was the first question of the day. This time the child did not
hesitate. Her prompt response
was: “They were attached to each
other”.
[35]
She was
again asked to use the dolls to demonstrate. By this time it was
apparent that no evidence of the accused raping the child
by
inserting his penis into her vagina and into her anus would be
forthcoming, and furthermore, that it was never the State’s
intention to present evidence of this nature. Indeed, I was informed
that it was always the State’s case that both the child
and the
accused remained fully clothed throughout the course of the
experience which the child had been pressed to describe.
[5]
[36]
Matete was again asked to demonstrate, using the dolls, what had
happened while she was
sitting on top of the accused. The child
remained motionless. So did the dolls. The question was repeated. She
eventually said
that the accused had made some movements. When she
was asked whether she felt anything on her urinating part there was
once again
no answer forthcoming. The question was repeated. The
silence continued. The child was then asked how her urinating part
was after
the movements. She eventually replied that it was painful.
When asked whether the accused made the movements several times or
for
a short while, she said that he stopped after a short while, as
she had said that she wanted to urinate. Later in her evidence,
when
asked whether the accused made soft or hard movements, she said that
he made the movements “strongly”. When asked
whether his
urinating part was soft or hard, she said that it was hard.
[37]
She
added that it was before she had gone to urinate that the accused had
warned her not to tell anyone otherwise he would
kill her.
[6]
She testified that she did not have an urge to urinate and that it
was painful to try. It had not been painful on other occasions
and
she cried on this occasion. Her crying awoke L[....], who asked why
she was crying but she did not respond. The accused did
however. He
said that it could be that her septic wounds were painful. She did
not respond to this suggestion. During her evidence,
she confirmed
that she did have a septic wound on her knee, but said it was not
painful. The pain was already subsiding, she added.
[38]
She continued to explain that the accused left thereafter, saying
that he was going to
buy something. She lay on the bed with her two
sisters. By this stage she had stopped crying. She told them what had
happened to
her (for some reason the prosecutor did not pursue this
line of questioning but instead questioned the child about the
visibility
and whether anyone else had entered the house after her
mother had left and before the accused had arrived, to which she
replied
no). She said the accused did not make her bed that morning.
[39]
During
cross examination it was put to her that the accused had visited her
home because he wanted some meat that was left over
from dinner the
previous night. Her response was that he was not telling the truth,
and that they did not eat meat the night before.
[7]
It was put to her that the accused warmed the meat and then asked if
she was not hungry, and also went over to the bed where her
siblings
were sleeping to check whether they wanted food. She repeatedly said:
“He is not telling the truth – he tells
lies”. It
was put to her that the accused had asked her to get up so he could
make the bed. She denied this. It was put to
her that the accused
would say that when she was standing on the bed, preparing to move to
her sisters’ bed, he pulled the
blanket and she said “ouch”.
He realised that he had disturbed a wound as he knew that she had
wounds on her legs.
He sat on the bed, pulled her towards his knee
and comforted her, patting her on the back and apologising for
hurting her. She
denied that any of this had happened but agreed that
her sister woke up while she was on the urinating bucket, that her
sister
asked why she was crying and that she had failed to respond.
She also admitted that the accused had explained to her sister that
he had removed the blanket from her, and that during the course of
doing so, he had irritated and aggravated one of her sores.
She
agreed that she thereafter joined her sisters in their bed, but
denied that the accused then proceeded to make her bed or that
he
swept the floor and tidied the shack. She also admitted that he told
them that he was going to buy bread.
[40]
She denied
that the accused used to check up on them when their mother was
absent.
[8]
She admitted that he
regularly visited them when her mom was at home.
[41]
In response to the court’s questions, she said that she was
taken to hospital and
that she did not see the accused when he
returned. She also said that she had never seen the male urinating
part before.
[42]
The last witness who testified on behalf of the prosecution was Ms
Makinana, the forensic
nurse who examined the child under general
anaesthetic at CMH at 19.50 on 31 March 2018, and who had completed
the medical examination
report form (the “J88”). It
turned out that she had just completed a forensic training course
when she examined the
complainant. She said that by the time she had
arrived the general anaesthesia had already taken effect and she
could not speak
to the complainant. Present during the examination
were theatre nurses, an anaesthetist, a gynaecologist and the child’s
mother. She spoke to the mother after the examination when she
completed the J88. The information which she recorded under the
section “relevant medical history” was obtained from the
mother. It reads as follows: “Alleged sexual assault
by a man
known to her. According to the mother, the child disclosed to her
friend about sexual assault. Date of incident 31.3.2018.
Time plus
minus 09h00.”
[43]
She said that the child had no physical injuries but that she had
concluded on the form
that the absence of injuries does not exclude
physical assault. She did not observe any wounds on the child’s
legs despite
having had sufficient opportunity to conduct a full and
thorough examination, as the child was under anaesthetics.
[44]
She observed bruising to the urethral orifice, the labia minora and
the posterior fourchette.
The latter had a small laceration. The
hymenal tissue was scanty with bruising at the three ‘o’
clock position. The
vagina was not bleeding and did not present with
any tears or discharge. The cervix was not visualised and the
perineum was not
injured. She noted that her findings were consistent
with fresh vaginal penetration.
[45]
There were no anal abnormalities detected except for a fissure on the
orifice at the six
‘o’ clock position. She noted this
finding to have been consistent with penetration. During her evidence
in chief she
qualified what she had noted and said that the anal
penetration was also fresh. She concluded that the injuries were
caused by
blunt force.
[46]
She was asked whether these injuries could have been caused while the
child, wearing panties,
was straddled atop her assailant, wearing
trousers. Her response reads as follows:
“ …
so the
force that is applied caused these injuries … I don’t
know about wearing a panty but the force applied is the
one that
cause the injury …”
[47]
When I asked her whether her answer would have been the same if the
assailant was also
wearing trousers, she appeared somewhat taken
aback and repeated:
“
My lady, I don’t
know about the trouser, but as an examiner, those injuries are caused
by the force applied to the area.”
[48]
She added that the posterior fourchette is very close to the anus, so
if penetrating blunt
force had caused the vaginal injuries, it could
have caused the anal injury too. Only hard objects can cause these
types of injuries
she concluded.
[49]
When I enquired from the witness why she was of the opinion that the
injuries were fresh,
her response was of no assistance. She simply
repeated that the wounds were fresh, that the lacerations were fresh
and that the
bruises to the urethral orifice were all fresh. When I
tried to clarify, the witness said that the injuries were sustained
within
72 hours of her examination. She explained that a fissure is a
cut or a laceration. She could not say how long the anal fissure
was.
She did not measure it. Poor personal hygiene could cause a peri-anal
fissure, but not one in the anal orifice. When asked
whether it could
be caused during an attempt to expel hard faeces or by constipation,
she said that hard faeces can cause a fissure
“below the
midline” but not above the anal orifice, as in this case. I
asked her to clarify. Her response, which did
not provide
clarification at all in my view, was the following:
“…
Because
if you look at the drawing, if you look at where I’ve indicated
the fissure. That is above the mid, it’s not
very deep like in
a case where she will be pushing hard faeces. This one is just above
the midline.”
[50]
She said that if the child had been injured in this fashion at about
9am (ten hours before
her examination) she would have expected
bleeding. She then added: “but sometimes you won’t see
bleeding.”
[51]
She agreed that the J88 reflected facts, as well as her findings and
her opinions, but
that, despite the gynaecologist having been
present, and despite her lack of experience, no other health
practitioner had been
asked to sign off the J88 or to provide
independent comment. She said that while the gynaecologist remained
present throughout
the entire examination, there was no specific
reason why the child was not examined by the gynaecologist.
[52]
I made my best endeavours to repeat to the witness what the child had
described during
her evidence. I then enquired whether the injuries
she had observed could, for example, have been inflicted by trousers
made from
hard material, or a belt or a buckle perhaps, rubbing
through the soft material of the child’s panties. Her response
was
that she could not say what had penetrated the child, except that
it was blunt force.
[53]
Before the State closed its case, the accused admitted that what the
social worker (who
had assessed the complainant for competency) had
recorded in his report, correctly reflected what the child had said
to him. On
this point the social worker had recorded the following:
“
In the case of the
child concerned, she argued that Thando (close friend and neighbour)
entered the house while her siblings were
asleep. He then asked her
if she was not bored and answered no. He then took off his shoes and
got into bed. He apparently holds
her tight while sleeping on the bed
… he is reported to have hold her tied shaking his body until
the child concerned wanted
to pee. He then threatened to kill her if
she told anyone.”
[9]
[54]
The 43 year old accused elected to testify in his defence. He
repeated his version as put
to the state witnesses. He explained that
he had built the shack for the complainant and her family. When the
children were away
visiting their grandparents, he and their mother
used to sleep together as boyfriend and girlfriend in the shack which
he had built.
[55]
He said that on the day in question he had anticipated that
A[....]2 T[....] (the
complainant’s mother) would ask him to do
something at the shack as usual, so after he had escorted her to the
Hiway taxi
rank, he went to the shack and warmed up some of the
chicken left over from dinner the previous night. He described (in
line with
the version which had been put to the State witnesses on
his behalf), that when he pulled the blanket the complainant
exclaimed
(using the word “ouch”) and he observed that
she was holding her knee. He checked her knee and realised that he
had
caused pain to her sore. He pulled her towards him and said
“sorry, sorry sisi” (at this stage the witness
demonstrated
how he had patted the child on the back using one of the
female anatomical dolls to represent the complainant). He explained
that,
when her sister enquired why she was crying, he had said that
he was the one who had touched her sore and had caused her pain. When
he saw that there was no bread in the cupboard, he decided to go to
Hiway to buy some so that they could all eat the bread and
meat
together. Upon his return, and in the vicinity of the complainant’s
shack where he had just been, two men accosted and
assaulted him
accusing him of having raped A[....]2’s younger child. He told
them that he had just come from these children,
but they just dragged
him to the complainant’s shack where many people continued to
assault him.
[56]
A[....]2 (the complainant’s mother) arrived with the police.
She never spoke to him.
He spoke to her. He said: “I did not
commit this offence and I will never commit it.”
[57]
He confirmed that previously he had visited the complainant’s
shack of his own volition
to check on the shack and on the children
as there were housebreakers and thugs in the area, and most of the
time the door was
not locked. The complainant’s mother had also
invited him to go there and help himself to leftover food as he did
not have
a stove. She had also previously asked him to take care of
the children. Sometimes, when the children were at school, he went
there
and cleaned the shack in exchange for her kindness. He also
sometimes did so when the children were present.
[58]
His evidence was that on the day in question he was wearing underwear
with “heavy-weight”
trousers over them and a long sleeved
top. He had a good relationship with the children and their mom. They
had no reason to falsely
implicate him, he said.
[59]
During cross-examination he described the blanket as a soft one. He
said that when he inspected
the complainant’s knee he saw that
the blanket had dislodged the scab and there was a little bit of
blood. He realised that
this had caused her a lot of pain. When he
patted her back trying to comfort her however, she resisted. She did
not want to be
touched. He had never touched her before, he added.
[60]
He said that he did not dispute the evidence of the forensic nurse
because she is an educated
person. All he was disputing was “sexual
activity”. Upon questioning by the court he admitted that his
phone kept on
ringing when he was escorting A[....]2 to the taxi
rank. It was a woman who wanted him to do a job for her. A[....]2 was
curious
about the phone calls but he had said “no, just wait”
and she just laughed.
[61]
After the evidence had been completed I gave the legal
representatives an opportunity to
prepare to address me, particularly
on the question of intent. The prosecution pressed for a conviction
on the main count, contending
that the complainant’s honest and
reliable description of the manner in which the accused had placed
her on top of him and
the manner in which he had moved, was
sufficient to prove that the accused had the requisite intent to
rape, and the evidence was
sufficient for a conviction of rape on the
basis of
dolus eventualis
.
[62]
The prosecutor conceded that the accused was a good witness,
but contended that this
was so only because he was sure that the
youngest of the three siblings would not be in a position to describe
what he had done,
and because he had prepared his defence even before
he set out for the complainant’s shack. Indeed, so it was
argued, as
an inherently evil person, he had cunningly calculated and
planned his every move in advance, even down to saying that he had
injured
the scab on her knee, in the event of her telling on him. It
was contended that this was a ripe opportunity for him. He knew that
the mother would be at work. He knew that the children were alone. He
knew that the door was unlocked. It was further contended
that his
reason for having gone there in the first place was improbable and
ought to be rejected as false. The reason he did not
undress himself
or the child was because his mischievous intent would then be too
easily detected. His clandestine conduct was
designed to confuse this
young child. It was contended in the alternative that the accused
should be convicted of attempted rape;
alternatively, of sexual
assault in contravention of section 5 of the Sexual Offences Act.
[63]
The accused’s representative on the other hand argued for an
acquittal, even on the
competent verdicts such as attempted rape and
sexual assault. Constructive criticism, which I will deal with
presently, was levelled
at the paucity of the State’s summary
of substantial facts, and the failure of the prosecution to comply
with its obligation
to set out the facts it intends relying on with
sufficient clarity to enable the accused to understand the case he is
expected
to meet. It was further contended that the prosecution had
failed dismally to prove that the accused had the requisite intent to
rape the complainant.
[64]
Section 144(3)(a) of the Criminal Procedure Act 51 of 1977
(“the CPA”)
states that an indictment shall be
accompanied by a summary of the substantial facts of the case that,
in the opinion of the Director
of Public Prosecutions (“the
DPP”), are necessary to inform the accused of the allegations
against him. The subsection
makes it clear that the provision shall
not be so construed that the State shall be bound by the contents of
the summary. In
S v Mpetha & others (1)
1981 (3) SA 803
(C) the issue as to what constitutes an adequate summary of
substantial facts was discussed. It was held that at the very least
the Attorney-General (now the DPP) is required by law to form an
opinion as to the adequacy of the summary. Implicit in this is
the
duty to bring a fair, objective and responsible judgment to bear upon
what facts it is desirable for the accused to know in
order to fully
understand the allegations against him, in order to prepare for the
case and to present his defence. The purpose
of the summary is to
fill out the terse picture invariably presented by the indictment.
The greater the lack of adequate information
in the summary, the
greater the need for detailed particulars. Indeed, in terms of s 87
of the CPA the accused may at any stage
before evidence is led,
present the prosecution with a request in writing to furnish
particulars or further particulars of any
matter alleged in the
charge. This goes without saying. I wish for the moment however, to
dwell on the summary of substantial facts
before me.
[65]
The accused has been charged with unlawfully and intentionally
committing an act
of sexual penetration with the complainant in terms
of section 3 of the Sexual Offences Act. The term sexual penetration
includes
any act which causes penetration to any extent whatsoever by
–
a.
The genital organs of one person into or beyond the genital organs,
anus or mouth
of another person;
b.
Any other part of the body of one person or, any object, including
any part of
the body of an animal, into or beyond the genital organs
or anus of another person; or
c.
The genital organs of an animal, into or beyond the mouth of another
person.
[66]
The summary of substantial facts, to my mind, is very clear. It does
not call out for elucidation
and I am not surprised that none was
called for. It mentions the time and the place of the offence. It
unequivocally states that
the accused raped the complainant by
inserting his penis (as opposed to another part of his body or an
object) into the complainant’s
vagina and her anus. It is
specific. It does not refer to the area penetrated as the genital
organs or the mouth of the complainant.
Indeed it cannot be more
precise. It refers to the vagina, which is a closed muscular canal
which extends from the outside of the
female genital area right up to
the neck of the uterus. Differently put, while the prosecution was
quite entitled to use the much
wider term of “genital organs”
it elected to confine itself to a tube which is situated deeper than
most of the other
genital organs, in that it is a tube designed,
amongst other things, to accommodate childbirth.
[67]
As I have said, the prosecution is not bound by the summary of
substantial facts. However,
where the evidence which the State
intends to lead is so vastly different from that reflected in the
summary of substantial facts,
it is expected from the prosecution to
either supplement the summary, and/or present an opening address.
Most of the cases dealing
with this aspect, traverse it on the level
of prejudice to the accused. The accused is not however, the only
party to these proceedings.
The presiding officer forms an integral
part of the composition of this court.
[68]
The
Prosecution Policy of the National Director of Public Prosecutions is
the end result of a process of intense consultation
amongst all
prosecutors in this country. It has been tabled in parliament and is
binding on the Prosecuting Authority. Over and
above that, the
National Prosecuting Authority Act 32 of 1998
requires that the
United Nations Guidelines on the Role of Prosecutors should be
observed.
[10]
Any discretion
exercised by an individual prosecutor must be exercised according to
the law and within the spirit of the Constitution.
The aim of the
Prosecution Policy is to set out the way in which the Prosecuting
Authority and individual prosecutors should exercise
their
discretion.
[69]
According
to this policy the prosecutor’s primary function is to assist
the court in arriving at a just verdict, and, in the
event of a
conviction, a fair sentence based on the evidence presented. The
decision to prosecute, and upon which charges are formulated,
must be
taken with care because it may have profound consequences for
victims, witnesses, accused and their families. A wrong decision
may
undermine the community’s confidence in the criminal justice
system. The Prosecution Policy specifically states that
resources
should not be wasted pursuing inappropriate cases, but must be used
to act vigorously in those cases worthy of prosecution.
[11]
In deciding whether or not to institute criminal proceedings against
an accused, prosecutors should assess whether there is sufficient
admissible evidence to provide a reasonable prospect of a successful
prosecution on the charges specified. Indeed, there must be
a
reasonable prospect of a conviction on the charges specified,
otherwise, either lesser charges should be preferred, or the
prosecution
should not be commenced or continued. As stated in the
Prosecution Policy, the assessment may be difficult, because it is
never
certain whether or not a prosecution will succeed. Thus, in
borderline cases, prosecutors should probe deeper than the surface of
written statements. Where prospects of success are difficult to
assess, prosecutors should consult with prospective witnesses in
order to evaluate their reliability. Factors to be considered, as
specifically applicable to the case before me, are whether the
evidence is strong enough to prove all the elements of the offence
and what sort of impression the witnesses are likely to make.
[70]
Prosecutors
should decide upon, and draw up charges based on available evidence
which will inter alia adequately reflect the nature,
extent and
seriousness of the criminal conduct and which can reasonably be
expected to result in a conviction, provide the court
with an
appropriate basis for the sentence requested, and enable the case to
be presented in a clear and simple way.
[12]
This means that prosecutors do not necessarily have to proceed with
the most serious charges imaginable. Alternative charges may
be
justified by the amount of evidence and where such charges will
significantly enhance the likelihood of a conviction. The bringing
of
unnecessary charges should be avoided because it may not only
complicate and prolong trials, but also amount to an excessive
and
potentially unfair exercise of power.
[71]
Item 7 of
the Prosecution Policy is of particular relevance to the matter
before me. It states that prosecutors should fairly present
the facts
of a case to
a
court
(my
emphasis). They should disclose information favourable to the defence
(
even
though it may be adverse to the prosecution case
).
[13]
[72]
It is with the aforegoing in mind, that I return to the summary of
substantial facts. To
my mind it is misleading in its particularity.
This is not a defect which could not have been cured by an
appropriate opening address,
an indulgence which has been
consistently withheld from the Bhisho and Mthatha criminal courts in
this Division. Section 150 of
the CPA provides that the prosecutor
may, at any trial, before any evidence is adduced,
address the
court for the purpose of explaining the charge and indicating,
without comment, to the court what evidence he intends
adducing in
support of the charge.
[73]
Our courts
have emphasised that the prosecutor does not represent only the
interests of the State. The prosecutor also represents
the community
at large and the interests of justice generally and has a duty to the
accused to ensure that an innocent person is
not convicted. In
S
v Ntozini
2009
(1) SACR 42
(E) Pickering J warned against the making of
unsustainable submissions. The overriding duty of the prosecutor is
not to win convictions,
but to ensure that criminal justice is done.
A prosecutor is expected at all times to act in a manner which is
responsible and
fair to the accused and to be candid and open with
the court.
[14]
[74]
In my view an opening outline, explaining from the outset that the
high water mark of the
State’s case (if all went according to
plan) would be that the accused made movements up against the
complainant’s
body while the two of them remained fully
clothed, would have served the purposes outlined above. Not
disclosing this in the summary
of substantial facts, or at least in
an opening address, has not only deprived the court of an explanation
that the evidence which
the State intends adducing is at odds with
that which is set out in the summary of substantial facts, but may
very well have the
effect of depriving the accused of his
Constitutional right to a fair trial. Because of what I am about to
say however, it is not
necessary for me to make a definitive finding
in this respect.
[75]
One of the main objects which the introduction of the Sexual Offences
Act has achieved,
is to criminalise all forms of sexual abuse or
exploitation. The crime of rape has been expanded and extended to
include blunt
penetrative force exerted by using objects other than
the instrumentality of the male penis being inserted into the female
vagina.
Having regard to well-documented examples of where unlawful
and intentional acts of sexual penetration have been committed using
hands, fingers, dangerous weapons and other similar blunt
instruments, oft times inflicting far more serious bodily and
psychological
harm than that which may potentially be inflicted by
the external male organ primarily designed for urination and
copulation, the
introduction of the Sexual Offences legislation has
been welcomed.
[76]
Prosecutors
are however, expected to be vigilant and to avoid artificial
reasoning in their approach to matters which would under
the previous
regime, not have been elevated to anything more serious than what was
termed “indecent assault”, the elements
of which coincide
with “sexual assault” as referred to in s 5 of the Sexual
Offences Act.
[15]
The
definition of “sexual violation” as set forth in s 1 of
the Act and as applied to the evidence before me, would
include any
act which causes direct or indirect contact between the genital
organs or anus of one person, and any part of the body
of another
person, or any object, including any object resembling or
representing the genital organs or anus of a person, but does
not
include the act of sexual penetration, which includes any act which
causes penetration by the genital organs of one person
into or beyond
the genital organs or anus of another person.
[77]
The somewhat novel and fascinating argument contended for by the
prosecution has no support
in the facts, and has no place even in the
extended definition of rape as provided for in the Sexual Offences
Act. There is nothing
before me to suggest that the accused intended
to, or attempted to commit an act of sexual penetration with the
complainant, as
provided for in the Act. As I understand it, the
prosecution seeks to rely on intention to rape in the form of
dolus
eventualis –
another even more novel and fascinating
attempt to develop the law to cover a multitude of sins it was never
intended to cover.
Insofar as it may be necessary to provide reasons
for rejecting such far-fetched and spurious conjecture, I will be
brief. Application
of
dolus eventualis
to the scenario which
the prosecution has attempted to sketch will go something like this:
The fully clothed accused, in making
the movements vaguely described
while he held the fully clothed complainant on his lap, acted with
intention to rape in the form
of dolus eventualis if the commission
of the act of rape was not his main aim but:
a.
He subjectively foresaw the possibility that, in striving towards his
main aim
(presumably to assault the child by rubbing himself up
against her while they were fully dressed), the act of rape (on the
State’s
case penetrating both her vagina and her anus with his
penis) may be committed, and
b.
He
reconciles himself with this possibility.
[16]
[78]
Burchell and Milton’s definition and the learned authors’
comments on foresight
are insightful. They puts it thus:
‘
Dolus
eventualis
exists where the accused foresees the possibility that
the prohibited consequence might occur, in substantially the same
manner
as that in which it actually does occur, or the prohibited
circumstance might exist and he accepts this possibility into the
bargain
(ie is reckless as regards this possibility). The
requirements of
dolus eventualis
in consequence crimes are,
therefore: (a) foresight, (b) possibility, (c) correlation between
foreseen and actual manner of consequence
occurring, and (d)
recklessness.
Intention in the form of
dolus
eventualis
relates
to circumstances or consequences which the actor does not plan or
desire but which, in the light of human experience, can
be expected
to follow if the actor proceeds with the planned course of action.
Dolus
eventualis
thus
has as its focus those circumstances or consequences which are
expected and which the actor has realised will come about.’
[17]
[79]
To suggest that, in the light of human experience, it can be expected
that such actions
as described by the complainant will result in the
actor’s penis penetrating the vagina and the anus of the
victim, is absurd
and deserves to be rejected outright.
[80]
That then leaves me with the competent verdict of sexual assault. In
order to determine
whether the prosecution has proved beyond a
reasonable doubt that the accused is guilty of a contravention of s 5
of the Sexual
Offences Act, I will briefly traverse the cautionary
rules which apply to the complainant.
[81]
Not only is
the complainant a child. She is also a single witness. Her evidence
must accordingly be evaluated with caution. Section
208 of the CPA
provides that an accused may be convicted on the single evidence of
any competent witness. It is however a well
established judicial
principle that the evidence of a single witness should be approached
with caution. The correct approach to
the application of this so
called cautionary rule was set out by Diemont JA in
S
v Sauls and Others
.
[18]
The process of reasoning which is appropriate to the application of
the cautionary rule in any particular case will depend on the
nature
of the evidence which the court has before it. There is no rule of
thumb test or formula to apply when it comes to a consideration
of
the credibility of the single witness. The trial judge is bound to
weigh the evidence, consider its merits and demerits, and,
having
done so, will decide whether, despite shortcomings or defects or
contradictions in the testimony, the truth has nevertheless
been
told. A final evaluation can rarely be made without considering
whether such evidence is consistent with the probabilities.
[19]
Where the evidence of the single witness is corroborated in any way
which tends to suggest that the story was not concocted, the
caution
enjoyed may be overcome and acceptance facilitated. A court will
usually find it profitable to compare the nature and quality
of the
complainant’s evidence with that of the accused.
[20]
[82]
In the matter before me the child complainant falls into the
classical category of
a single witness. Evidence from her siblings
that she told them that the accused put her on his lap and shook her
around or that
he made movements, does not serve as corroboration for
her version. At best it shows that she has, to some extent, been
consistent.
In my view the medical evidence also does not corroborate
the complainant’s version. On the contrary, it tends to suggest
that it is unlikely that the injuries which were observed when the
complainant was examined were caused by the event which the
child had
described.
[83]
It is in
any event trite that the evidence of young children should be treated
with the utmost caution owing to the dangers inherent
in such
evidence.
[21]
Children are, by
their very nature, imaginative. They are prone to suggestibility.
These are but two of the elements against which
the trier of fact
should guard. The primary concern of this court as the trier of fact
is to ascertain whether the evidence of
a young witness is
trustworthy. The concept of trustworthiness was examined by the court
in
Woji
v Santam Insurance Co Ltd
[22]
.
The court found that it comprises the following four components:
a.
The capacity for observation;
b.
The power of recollection, which depends on whether the child has
sufficient
years of discretion to remember what occurs around her;
c.
Narrative ability, which raises the question whether the child has
the capacity
to understand the questions put, and to frame and
express intelligent answers;
d.
Sincerity, or a consciousness of the duty to speak the truth.
[84]
It is clear from what I have already mentioned, that even without
invoking cautionary rules,
the complainant’s evidence has
failed to pass muster as being satisfactory in a number of respects.
The prosecution had grave
difficulty in extracting information from
her. She either failed to respond altogether to relatively simple
questions, or she said
that she did not understand them. Indeed, she
sometimes seemed quite bewildered, and more than once indicated that
she did not
know what she was supposed to say or that she did not
know the answer to the question. This happened on at least 16
occasions.
I noted that when she was asked how her urinating part
felt, she first declined to answer the question, and then said that
she
was thinking. She remained in this state of contemplation for at
least ten seconds before replying that it was painful. When she
was
asked where the accused’s urinating part was in relation to
hers, she first said that she did not understand the question.
Yet,
when the question was repeated the following day, she replied without
hesitation that their urinating parts were attached
to each other,
which, on her own version (that no clothing was removed), could
simply not have happened.
[85]
Other extraordinary features of the evidence which may well have some
bearing on the strength
of the State’s case is the fact that
the complainant’s mother laid a charge of rape against the
accused based on a
single telephonic conversation with L[....] who
told her that the complainant had said that the accused did “dirty”
things to her. From this, and without ever enquiring from the
complainant herself as to what had transpired, she extrapolated the
information which she gave to the medical nurse, to the effect that
the child had been sexually assaulted. I also found it uncomfortably
out of place that her most vivid recollection of what transpired that
day, was the fact that someone (who turned out to be another
woman)
persistently pestered the accused telephonically while he was meant
to escort her to the taxi rank.
[86]
The difference between the evidence for the prosecution and
that of the accused was
like night and day. The accused impressed me
as a humble, unsophisticated and naïve witness who readily
conceded what he had
to. He gave his evidence in a clear,
straightforward manner, often illustrating with physical
demonstrations as if he was testifying
from genuine recollection. I
did not find his version of the events to be contrived or in any way
fabricated or disingenuous. In
my view, the prosecutor’s
suggestion that he was a good witness only because he was repeating a
version which he had contrived
and rehearsed even before he committed
the offence, is nothing more than conjecture. It is in any event
unlikely that the accused
would have gone straight back to the shack
after having sexually violated the complainant, particularly not upon
the request of
the complainant’s mother, as suggested by her.
[87]
It is in any event not necessary for this court to find that the
complainant is a liar
in order to find in the accused’s favour.
Nor do I need to believe the accused. The onus is on the State to
prove his guilt
beyond a reasonable doubt. At the close of the
State’s case this onus had not been discharged. Had the accused
closed his
case without testifying, I would have been constrained to
invoke the provisions of s174 of the CPA and to have discharged him.
Instead he elected to present his version of what had transpired on
the day in question under oath. This was the same version which
was
disclosed in his plea explanation. This was the version that remained
consistent throughout the trial, frequently fortified
by the evidence
of the State witnesses. A version which, in the light of the obvious
hurdles which the State had failed to overcome,
cannot, at the end of
the day be rejected as false.
[88]
In the premises it is this court’s verdict that the
prosecution has failed to prove its case beyond a reasonable doubt.
The
accused is entitled to the benefit of the doubt. He is found not
guilty, and he is discharged.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Dates
of hearing:
8 – 12 March 2021
Judgment
delivered:
25 March 2021
Counsel
for the State:
Ms
Jodwana-Blayi
Instructed
by:
The Director of Public Prosecutions, Bhisho
Counsel
for the accused:
Ms Mtini
Instructed
by:
Legal Aid Board, King William’s Town
[1]
The words “and anus” were added by consent after I had
raised with the prosecutor that the indictment refers to both
the
vagina and the anus.
[2]
L[....] explained that these wounds on her little sister’s
legs were caused by dirty water.
[3]
The evidence is not clear in this respect. According to A[....] it
was she, and not L[....], who spoke to their mother on the
phone and
told their mother that the complainant had said “that it was
painful to urinate because of the accused”.
L[....] too, did
not say that she herself spoke to the mother. The mother however was
adamant that she spoke to L[....] on the
phone, who told her that
the child had been crying and had said that the “accused did
dirty things to her”.
[4]
This, despite the fact that the child was in her company for at
least eight hours before the child was medically examined.
[5]
At this stage the prosecution submitted that it would be contended
at the end of the day, with the help of medical evidence that
penetration did occur even though both parties were fully clothed,
despite the fact that this was not mentioned in the summary
of
substantial facts or in an opening statement.
[6]
When she commenced with her evidence in chief, the complainant
volunteered that this was the first thing that the accused had
said
when he had entered the shack.
[7]
This is in contrast to the evidence of her mother who not only
confirmed that they had left over meat from dinner the night before,
but specified, as the accused did, that it was chicken.
[8]
This denial is in contrast with A[....]’s evidence.
[9]
The obviously confusing grammar and potentially prejudicial
interchangeable use of words such as “tight” and “tied”
is repeated verbatim from the report of Captain Thomas, the
designated forensic social worker.
[10]
Adopted by the Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, Havana, Cuba, 27 August
to 7
September 1990
[11]
Item 4 of the Prosecution Policy.
[12]
Item 6 of the Prosecution Policy.
[13]
These polices, and many more have been codified in terms of a Code
of Conduct for members of the National Prosecuting Authority
under
section 22(6)
of the
National Prosecuting Authority Act 32 of 1998
.
[14]
See
S v
Rozani; Rozani v Director of Public Prosecutions; Western Cape &
others
2009
(1) SACR 540 (C)
[15]
Section 5
states that a person who unlawfully and intentionally
sexually violates a complainant, without the complainant’s
consent,
is guilty of the offence of sexual assault.
[16]
See C.R. Snyman:
Criminal
Law
5ed
2008 page 184
[17]
Jonathan Burchell and John Milton: Principles of Criminal Law: 3ed
2005 page 467
[18]
1981 (3) SA 172
(A) at 180E-G
[19]
See
S v
Texeira
1980
(3) SA 755 (A) 761
[20]
See
Maake
v DPP
[2011]
1 All SA 460
(SCA) at [6-8]
[21]
See
R v
Manda
1951
(3) SA 158
(A) at 162.
[22]
1981 (1) SA 1020
(A) at 1028B-D