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Oageng v S (525/2017) [2019] ZAGPPHC 134 (16 April 2019)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Conviction and sentencing — Appellant convicted of rape and assault against his biological daughter — Trial court found sufficient evidence of multiple incidents of rape and assault, leading to concurrent sentences of twenty years and five years imprisonment — Appellant appealed against convictions — Court upheld convictions based on compelling testimony from the complainant and corroborating witnesses, affirming the trial court's findings and sentences.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a criminal appeal to the High Court (Gauteng Division, Pretoria) against convictions imposed by the Regional Court, Klerksdorp. The appellant, M S Oageng, appealed against his convictions on two counts of rape and one count of assault with intent to do grievous bodily harm. The respondent was the State.


In the regional court, the appellant was convicted on all three counts and sentenced to 20 years’ imprisonment (count 1), 25 years’ imprisonment (count 2), and 5 years’ imprisonment (count 3), with the trial court directing that the sentences run concurrently. The appellant sought and obtained leave to appeal against the convictions only.


The dispute concerned whether the trial court had correctly found that the State proved the appellant’s guilt beyond reasonable doubt, given the appellant’s complete denial and the arguments raised on appeal relating to the complainant’s evidence, corroboration, and alleged misdirection by the trial court.


2. Material Facts


It was common cause that the appellant was the biological father of the complainant. The complainant’s evidence, accepted by the trial court, placed the alleged sexual abuse and assaults within a family/home environment following the death of persons in the household and during periods when the complainant was still at school.


Regarding the first rape (count 1), the complainant testified to a specific incident occurring approximately a week after the funeral of the appellant’s second partner (whom the complainant referred to as a “second stepmother”), said to have died in 2003 or 2004. The complainant stated that, after this funeral, the appellant entered her bedroom at night, undressed her, restrained her, and had sexual intercourse with her without consent, continuing despite resistance, and threatened to kill her if she reported it. The complainant did not provide particulars of additional specific rape incidents within the period covered by count 1, though she stated more generally that the appellant “continued to sleep with her” thereafter.


As to the second rape count (count 2), the complainant described a particular incident said to have taken place during the March school holidays of 2007. She testified that the appellant found her having sexual intercourse with her boyfriend, took her home, assaulted her, threatened her with a knife, and during this sequence she sustained a stab wound to a finger. She testified that the appellant then raped her. She further described a second rape later that night after the appellant had gone to sleep and then returned after midnight, again raping her. The complainant’s account was that she attempted suicide afterwards by dissolving the appellant’s pills in water, but fell asleep; the appellant discovered this and assaulted her further.


The complainant stated that, the morning after the 2007 incident, she showed the finger injury to a neighbour (an elderly woman) and later went with friends to report the matter to the Child Protection Unit, where her statement was taken by officers (the evidence indicated that Warrant Officer Pitso was involved initially but did not complete the process). The complainant’s friend, Ms L[….] N[….] J[….], testified that the complainant reported to her during a school holiday in 2007 that her father had had sexual intercourse with her at night and again in the morning, under threat, and that she had a finger wound consistent with being stabbed. Another friend, Ms M[....], also testified that the complainant arrived crying and reported that the appellant forced her to have sexual intercourse while holding a knife, and again in the morning, after the appellant found her having sex with her boyfriend; she accompanied the complainant to Ms Jonas, where the complainant repeated the report.


The complainant further testified that the appellant continued having sexual intercourse with her until 2011, when she fled to the residence of a former partner of the appellant. She described a pattern of assaults over the years, including being hit with a sjambok, open hands, and fists, and fleeing to neighbours or relatives for safety. Her uncle (Mr Tomi) testified that the complainant came to him crying about being beaten by the appellant and that he confronted the appellant; he also testified to later family interventions and that he received feedback from family members that the complainant disclosed sexual intercourse with the appellant.


The complainant sought a protection order in 2011 and was involved in hospital/psychological treatment associated with depression. She ultimately laid a charge with the police in April 2012, and she was medically examined on 4 April 2012. The J88 report (admitted by agreement) recorded an old scar on a finger and old whip lesions on the posterior thigh (as recorded in the judgment).


The appellant’s evidence was a complete denial of all allegations of rape and assault. He disputed the complainant’s account of the 2003/2004 incident (stating, among other things, that his deceased partner’s mother stayed with them for a mourning period). He denied assaulting the complainant with a sjambok and denied ever finding the complainant having sexual intercourse with her boyfriend as alleged. He suggested that the complainant fabricated allegations because he refused to allow her boyfriend to sleep with her in his house, and he contended that the protection order related to the complainant’s depression rather than abuse. The protection order application, however, was noted by the trial court to contain allegations of assault, stabbing, and threats.


3. Legal Issues


The central legal questions were whether the trial court misdirected itself in evaluating the evidence and whether, absent such misdirection, the convictions could be said to be unsupported by proof beyond reasonable doubt. The appeal thus primarily concerned the application of legal standards of proof and appellate review to factual findings, particularly findings on credibility and reliability.


A further issue raised in argument was an asserted internal inconsistency in the trial court’s approach to the complainant’s evidence about the number of rape incidents, specifically an argument that the trial court’s statement about not being able to find more than one incident undermined the conviction structure. This required interpretation of what the trial court meant in context and whether it affected the soundness of the convictions.


The appeal also implicated factual and evaluative questions concerning corroboration, the effect (if any) of the State’s failure to call certain potential witnesses, and whether the evidence of one witness could have been “coached” given the timing of statement-taking relative to trial testimony.


4. Court’s Reasoning


The High Court approached the matter within the well-established framework governing criminal appeals against factual findings. It relied on the principle that, in the absence of demonstrable and material misdirection, a trial court’s factual findings are presumed correct and will not be displaced unless the recorded evidence shows them to be clearly wrong. The court cited authority emphasising the deference owed to a trial court’s credibility and factual determinations.


Applying that approach, the High Court considered the appellant’s principal complaints and the trial court’s treatment of the evidence. It addressed the submission that the trial court erred by stating it could not find more than one rape incident because the complainant described only one incident between 2003 and 2007. The High Court held that this argument rested on a misunderstanding of the regional court’s judgment: the statement related to count 1 (the 2003–2007 period), in which the complainant provided details of one specific rape incident, while giving no particulars of any other specific incidents in that time frame. The High Court accepted that this explained why the trial court limited its finding to a single rape during that period and did not regard it as undermining the separate findings relevant to the later incidents underlying count 2.


The High Court also considered the contention that the evidence of Ms M[....] should have been treated with suspicion because her statement was taken only after certain testimony had already been given, suggesting possible coaching. The High Court found that there was nothing in the record supporting this allegation; it noted that the witness denied discussing prior testimony, and the point was not developed through cross-examination in a manner demonstrating coaching or contamination.


More broadly, the High Court endorsed the trial court’s evaluation that the complainant’s account was materially corroborated by her friends on the 2007 disclosure and by other witnesses on the broader pattern of assault-related behaviour, including her running to neighbours for help. It accepted the trial court’s reasoning that the reluctance or limited disclosures by the elderly neighbour had to be understood in context, and that the trial court was entitled to treat such evidence cautiously without rejecting the State’s case.


The High Court also accepted the trial court’s reasoning rejecting the appellant’s suggested motive for false implication and the appellant’s portrayal of a good relationship coupled with purely verbal discipline. In addition, it accepted the trial court’s approach to delay and reporting behaviour in sexual abuse matters, namely that complainant conduct varies and that it was relevant that the complainant was still a child when the abuse began and that she did make a report to the Child Protection Unit in 2007, which did not progress as expected and was followed by conduct attributed to the appellant (including removing her cellphone and taking her away).


Having reviewed the record and the regional court’s reasoning, the High Court stated that it could not find a misdirection in the trial court’s assessment. It considered that the magistrate dealt with the evidence fully and comprehensively and correctly concluded that the State proved the appellant’s guilt beyond reasonable doubt on all counts.


5. Outcome and Relief


The High Court dismissed the appeal against conviction. The convictions on both rape counts and the assault count therefore remained undisturbed, as did the sentence structure as imposed by the trial court (noting that sentence was not the subject of the appeal).


The appeal was dismissed with costs, as stated in the order.


Cases Cited


S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645


Legislation Cited


Criminal Law Amendment Act 105 of 1997 (section 51(1))


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 3 read with sections 1, 56(1), 57, 58, 59, 60 and 61)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that there was no demonstrable and material misdirection in the trial court’s evaluation of the evidence and that the trial court’s factual findings, including credibility findings, were not shown on the record to be clearly wrong. The High Court further held that the appellant’s argument regarding the trial court’s statement about the number of rape incidents was based on a misunderstanding, because the statement related to count 1 (2003–2007) where only one incident was described with particularity. Consequently, the High Court upheld the trial court’s conclusion that the appellant’s guilt was proved beyond reasonable doubt on all counts and dismissed the appeal with costs.


LEGAL PRINCIPLES


The judgment applied the principle that an appellate court will show deference to a trial court’s findings of fact, particularly findings grounded in credibility assessments, and will not interfere unless there is a demonstrable and material misdirection or unless the record shows the findings to be clearly wrong.


It further applied the related principle that, when assessing alleged contradictions or misstatements in a trial court judgment, the appellate court must interpret the remarks in their proper context; a perceived inconsistency will not assist an appellant if the contextual reading shows that the trial court’s remark was directed to a different count or period and does not undermine the essential findings supporting conviction.

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[2019] ZAGPPHC 134
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Oageng v S (525/2017) [2019] ZAGPPHC 134 (16 April 2019)

/
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
GAUTENG DIVISION, PRETORIA
[1]
REPORTABLE:
YES
/NO
[2]
OF INTEREST TO OTHER JUDGES:
YES
/NO
[3]
REVISED
APPEAL NO: 525/2017
16/4/2019
In
the matter between :
M
S
OAGENG

APPELLANT
AND
THE
STATE

RESPONDENT
JUDGMENT
LOUW,
J
[1]
The appellant was arraigned on the
following charges before the regional court, Klerksdorp:
Count
1
: Rape, in that between the years
2003 and 2007 the Appellant unlawfully and intentionally committed an
act of sexual penetration
with the complainant by having sexual
intercourse with her without her consent. The charge sheet alleged
that s 51(1) of the Criminal
Law Amendment Act 105 of 1997 ("the
Minimum Sentences Act") was applicable in that the victim was
raped more than once
and that she was under the age of 16 at the time
of the incident.
Count 2
:
Contravention of the provisions of s 3 read with ss 1, 56(1), 57, 58,
59, 60 and 61 of the Criminal Law (Sexual Offences and Related

Matters) Amendment Act 32 Of 2007 ("the Sexual Offences Act")
in that during or between the years 2007 and 2011 the Appellant

unlawfully and intentionally committed an act of sexual penetration
with the complainant by having sexual intercourse with her
without
her consent. Section 51(1) of the Minimum Sentences Act was similarly
relied upon in the charge sheet on the ground that
the victim was
raped more than once and / or that she was under the age of 16 when
the incidents occurred.
Court
3: assault with intent to do grievous bodily harm, in that during or
between the years 2003 and 2011 the Appellant unlawfully
and
intentionally assaulted the complainant with open hands, fists, a
lineal object or an object resembling same, a belt, a stick
and/or by
kicking her.
[2]
In regard to Count 1, the trial court
found that it was not in a position to hold that the appellant had
sexual intercourse with
the complainant more than once as the
complainant only described one incident of rape between the years
2003 in 2007. The court
concluded that the Appellant raped the
complainant once during the said period. It accordingly convicted him
of rape read with
s 51(1) of the Minimum Sentences Act and sentenced
him to twenty years imprisonment.
[3]
On Count 2, the court found that the
Appellant had raped the complainant twice, but that the incidents
occurred before the Sexual
Offences Act came into operation on 16
December 2007. The court therefore found the appellant guilty of
common law rape read with
s 51(1) of the Minimum Sentences Act and
sentenced him to twenty five years imprisonment.
[4]
On count 3, the court convicted the
Appellant of assault with intent to do grievous bodily harm and
sentenced him to five years
imprisonment. The court directed that all
the sentences shall run concurrently. The appellant applied for leave
to appeal against
the convictions only, which was granted by the
court.
[5]
It was common cause that the Appellant
is the biological father of the complainant. The first witness called
by the state was Ms.
L[….] N[….] J[….], a school
friend of the complainant who had known her for 10 or 11 years. She
testified
that during a school holiday in 2007, the complain ant came
to the place where she resided and informed her that her father had

had sexual intercourse with her the previous night and also in the
morning before he left for a funeral in Lichtenburg. The complainant

told her that this happened under threat and that the appellant had a
knife with which he stabbed her on her finger. The wound
was an open
wound which was no longer bleeding. She said that the complainant was
emotionally disturbed and that she was crying.
The complainant also
told her that the Appellant had found the complainant with her
boyfriend and had then assaulted the boyfriend,
where after the
appellant had taken the complainant away and had sexual intercourse
with her.
[6]
The complainant then slept over at Ms.
J[….]' place from where she was fetched the next morning by
the appellant, whom Ms.
Jonas knew. He told them that if they went to
report the matter to the police, he would not be arrested as he had
friends inside
the police force. They then decided to go to the local
Child Protection Unit. On their arrival, they were met by warrant
officer
Pitso. He was in a hurry to go somewhere, and referred them
to two other gentlemen, who took their statements and told them to
come back the following day when Mr. Pitso would be available. The
appellant, however, fetched the complainant the next morning
and took
her to Lichtenburg after hurling insults at Ms. Jonas. The appellant
went to Lichtenburg to attend the funeral of a cousin.
The
complainant returned to school after the school holiday.
[7]
In cross-examination, Ms. Jonas said
that the complainant was in Grade 10 in 2007. The appellant was born
on 23 September 1989 .
This means that she would have been 17 or 18
years old at the time of the incident. Ms. J[….]confirmed that
the complainant
gave birth to a child in 2007 and that the child was
taken away from her. She said that she knew the father of the child,
who had
been in a relationship with the complainant. She further said
that when the complainant first came to her, she had met the
complainant
in the street when she, Ms. J[….], had returned
from having her hair braided and that the complainant was in the
company
of their mutual female school friend, Ms. M[….]. Both
of them cried after the complainant reported to Ms. Jonas what the

appellant had done to her. Ms. Jonas said that the complainant told
her that after the appellant had assaulted her boyfriend and
herself,
he took her back home and said that, if she could have sex with the
boyfriend, she must also have sex with him. She confirmed
that the
complainant told her that she had been raped twice by the appellant,
once in the middle of the night and once in the morning
before she
got up.
[8]
The complainant was the next witness to
testify. She said that she was five years old when her mother passed
away. Her father then
went to fetch her from her mother's parental
place in Coligny . At that stage, a lady by the name of D[….],
to whom the
complainant referred as her first stepmother, was living
with the appellant. The complainant had a good relationship with
D[….],
but she and the appellant parted ways. A second lady by
the name of T[….], to whom she referred as her second
stepmother,
then came to live with the appellant. T[….] passed
away during 2003 or 2004, where after only the complainant lived in
the
house with the appellant. The complainant said she was in grade
10 at the time.
[9]
The complainant testified that a week
after T[….]'s funeral, the appellant started touching her in
an indecent manner when
she was inside the house. One night he came
into her bedroom. He was only wearing his underpants and he removed
the complainant's
underwear. She asked him what he was doing, but he
did not respond. He then undressed himself, held her hands and got on
top of
her. He opened her thighs and inserted his penis into her
vagina. The complainant kept on pushing him away and asking him what
he was doing. The appellant continued until he ejaculated. He then
told her that if she told anybody about this he would kill her
and
would commit suicide. In the morning, the appellant poured water for
her to take a bath. She remained in the house for the
whole week and
did not go to school. She did not speak to anyone about the incident
because the appellant had said that he would
kill her if she did and
would commit suicide.
[10]
The complainant said that another
incident transpired in 2007. She said that the appellant continued to
sleep with her before 2007,
but did not provide any further details
about that . What she did say, was that in 2006 she had a boyfriend
of which the appellant
was aware. He assaulted her with a sjambok and
with his fists and open hands on her face. But even before 2006 he
used to assault
her with the sjambok when he came home drunk late at
night. She did not know why he was assaulting her. She used to run to
her
uncle 's place. She first ran to an old lady who was their
next-door neighbor, Ms. M[….], to whom she referred as a
grandmother.
She also fled to a Mr. M[….]'s place. When these
people came to speak to the appellant, he would tell them that she
was
selling her vagina.
[11]
The complainant fell pregnant in 2006
and gave birth in 2007. The appellant took the child to his sister in
Lichtenburg. At that
stage, the complainant had a boyfriend by the
name of P[….]. One day, the appellant found her at P[….]'s
home where
she was having intercourse with P[….]. The
appellant took the complainant home and on arrival he locked the door
and assaulted
her with his hands and a sjambok. She said he pulled
her to his bedroom and said that he was going to sleep with her just
as she
had been sleeping with Pana se. He had a knife in his hand.
When she lift ed her hand, presumably to defend herself, she got
stabbed
by the knife on a finger. He pulled off her panties,
undressed him self, threw her to the floor and inserted his penis
into her
vagina. She tried to push him away, but he threatened to
kill her with the knife if she screamed. When he finished, he told
her
to wash the blood from her finger.
[12]
When the appellant went to sleep, the
complainant took all the appellant's pills that were inside the house
and put them inside
a jug of water and waited for them to dissolve.
She wanted to commit suicide. She however fell asleep. When the
appellant woke
up, he came int o the room and saw the jug which he
then emptied. He proceeded to assault the complainant and told her
that she
should not sleep on the bed which he had bought with his
money. She then went to sleep on the floor. The appellant later,
after
midnight, came out of his room to her room, pulled up her
dress, removed her panty and again raped her.
[13]
The appellant went to work in the
morning and she then went to the next-door neighbor Ms M[....]. She
showed her the wound on her
finger and told her that her father had
assaulted her the previous night and had slept with her. She asked
Ms. M[....] not to mention
this to anyone. Ms. M[....] said she was
afraid of the appellant. The complainant thereafter went to the house
of a friend called
T[….] D[….] M[….], and
requested her to accompany her to the house where another school
friend, L[….]
J[….], the first witness who testified,
lived. On the way there, the complainant told Ms. M[....] what had
happened and
they both started crying. They found Lilly in the street
on her way back from some place where she had her years plaited. The
complainant
then explained to Lilly what had happened to her and
showed her the stab wound on her finger, whereafter Ms. M[....]
departed.
[14]
The complainant went back home the same
day but returned to Lilly's place the following day. Lilly then
contact ed P[....] to come
over and the complainant explained to him
what had transpired. Lilly and the wife of one M[....] then took the
complainant to the
Child Protection Unit where they met with Mr. Pit
so. While obtaining a statement from the complainant, he received a
call. He
then requested two male officers to continue taking her
statement and he left. After signing the statement, the two officers
said
that they would get back to them and requested her and Lilly to
leave
their
contact numbers, which they did. She and Lilly then left.
[15]
When the appellant return ed from work,
he told her that he was aware that she had been to the Child
Protection Unit, that he had
friends in the police and that whoever
she told the story to would not believe her. He then took her to
Lichtenburg. She said that
this was during the March school holidays
of 2007 and that she thereafter returned and went back to school. At
that stage, she
was in Grade 11. She did not receive any
communication from the Child Protection Unit because the appellant
had taken her cell
phone away. She was, however, told by L[….]
and P[....] that Mr. P[….] was looking for her. She was afraid
to go
back to the Child Protection Unit because the appellant would
tell her that he knew that she went back.
[16]
The complainant testified that the
appellant continued having sexual intercourse with her until 2011
when she fled from home and
went to D[….]'s place. As
previously mentioned, D[….]had been an earlier girlfriend of
the appellant.
[17]
The complainant went to the magistrates'
court during 2011 to apply for a protection order against the
appellant. The officials
contacted the appellant and asked him to
come to court. After the matter was discussed with the appellant, a
lady official told
her that the protection order which had been
granted should be withdrawn so that the appellant could take the
complainant to the
Park Med hospital as she had depression. The
complainant was given a document to fill in as proof that she had
withdrawn the charges
against the appellant. The complainant and the
appellant then proceeded to the hospital where they saw a
psychologist, Ms. Marlene
Booysen, who said that she must come back
the following day to be admitted to hospital, which she did. The
complainant returned
to D[….]'s place where she had been
staying for less than a month after running away from home. She told
D[….] that
the appellant had assaulted her and had also had
sexual intercourse with her. D[…..] said that when the
complainant was
discharged from hospital, they should go and lay
charges against the appellant at the police stat ion.
[18]
The complainant was taken back to the
hospital by the appellant and was admitted and overseen by a Dr.
Naidoo. She had told Marlene
Booysen the previous day that the
appellant was assaulting her and showed her where she had been
stabbed by the appellant. She
told Ms. Booysen that she did not want
to go back home because she had decided to commit suicide. She did,
however, not tell Booysen
that the appellant had been having forceful
sexual intercourse with her because she did not trust Booysen and
because the appellant
had contacts everywhere. She explained in
cross-examination that the reason why she did not trust Booysen was
because she, Booysen,
was also communicating with the appellant. She
also did not tell Dr. Naidoo for the same reason.
[19]
After the complainant was discharged
from hospital, she went back to D[....]'s place. D[....] took the
complainant to the police
stat ion during April 2012 to lay a charge
against the appellant. Warr ant officer Disepe was called from the
Child Protection
Unit and took down a statement from the complainant
. In her statement, about which the complainant was cross-examined,
she said
that she only opened up to D[....] during January 2012. The
reason why she waited three months to go to the police after opening

up to D[....] was because the appellant had connections everywhere
and she was afraid that he would find out that she had approached
the
police. The complainant confirmed in cross­ examination that she
was 15 years old when the first incident occurred. She
was asked
about the assaults. She said that the appellant used to hit her with
a sjambok and sometimes with his open hands and
clenched fists on her
face. On one occasion this resulted in a lump above her right eye
which she showed to her uncle. The complainant
was examined by a
medical doctor on 4 April 2012 and the J88 report completed by the
doctor was handed in by agreement. The clinical
findings noted on the
report were, firstly, an old scar on the complainant's fifth left
finger. However, in the doctor's schematic
illustration it is
indicated as being on the fifth finger of her right hand as was
testified by the complainant. The report further
noted old whip
lesions on the appellant's posterior thigh.
[20]
The next witness for the state was Ms.
M[....], the appellant's elderly neighbour. She was 79 years old at
the time of trial. She
testified that the complainant ran to her
place on several occasions when she was assaulted by the appellant.
The first time that
the complainant ran to her, the appellant also
appeared. She asked him what the problem was, and he said that the
complainant did
not wash the dishes. The second time that the
complainant ran to her, the appellant again followed her. He went
into the kitchen
and switched the kettle on. She asked him what he
was doing, but he did not respond. She could see that he was very
angry. She
was concerned about what he wanted to do with the kettle
and ordered him to leave. When the appellant left, the complainant
told
her that the appellant had accused her of sleeping with a boy
inside the house, which the complainant denied. When the complainant

left, she did not return to the appellant's house.
[21]
Ms. M[....] said that she did not
observe any injuries on the complainant's face or body and that the
complainant also did not tell
her that she was injured. The
prosecutor put it to Ms. M[....] that it appeared that she, Ms.
M[....], was afraid of something,
which she denied. When she was
asked whether there was any other occasion that the complainant came
running to her, she said that
she could not remember but when she was
asked whether she was forced to kneel before the appellant and beg
him she admitted that
when the complainant on one occasion came
shouting and screaming to her for help, she went to the appellant's
place and knelt before
him and begged him to stop assaulting the
complainant. She said that everything then returned to normal. She
denied that the complainant
ever confided to her about sexual
encounters wit h the appellant.
[22]
The next witness called by the state,
was Ms. M[....] who had been a friend of the complainant since 2003 .
She knew the appellant
and said that he did not want the
complainant's friends to visit the complainant . They only used to
visit her when the appellant
was at work. She was asked whether the
complainant confided in her during 2007 about something that happened
to her. She said she
could not remember in which year it was, but it
was during the years when they were still at school. She said that on
a day, early
in the morning, the complainant came to her place and
knocked on the door. She went outside and found the complainant
crying. She
was emotional and could not speak. When she calmed down,
the complainant told her that the appellant had found her sleeping
with
her boyfriend, that the appellant then took her back home and
forced her to have sexual intercourse with him while holding a knife.

She said that the appellant again had sexual intercourse with her in
the morning. Ms. M[....] then went with the complainant to
the house
of their friend, Lillian Jonas, the first state witness. There the
complainant told Ms. Jonas what had happened to her.
Ms. M[....] and
Ms. Jonas then suggested that they should go to the police. They did,
however, not go because the complainant said
that the appellant had
told her that he knew some police officers who were his friends and
that nothing would happen if a charge
was laid. After this incident,
the complainant did complain about her father beating her up for
coming back late from school.
[23]
During cross-examination , Ms. M[....]
said that when she testified that the complainant had said that the
appellant had found her
sleeping with her boyfriend, she meant that
they were having sex. She said that from 2003 up to the incident in
2007 the complainant
did not mention to her about being raped by the
Appellant. After 2007, Ms. M[....] and the complainant parted ways
and lost contact
as they then went to different schools.
[24]
The last witness called by the state was Mr. Tomi who is a brother of
the complainant's mother.
He is there fore the complainant's uncle.
He testified that, after the complainant's mother passed away, the
complainant came to
his place crying and complaining that she had
been beaten by the appellant. He said that he thought that this
happened during 2012
and 2013, but then said it happened while the
complainant was still at school and before she had a baby. The
complainant asked
him to speak to the appellant and asked him why he
was beating her. He went to the appellant who said that he had beaten
the complainant
because she had a boyfriend. Mr. Tomi reprimanded the
appellant and the appellant agreed not to do that again. He also
reprimanded
the complainant and told her to listen to her father.
After some time, the complainant again wanted to see him about the
appellant
assaulting her. When the complainant arrived, she
complained again that she had been assaulted by the appellant and had
a bump
on her forehead. He arranged for a family meeting to take
place at the appellant's home and for the appellant 's grandmother or

mother to be present. During the meeting, both the appellant and the
complainant refused to tell the truth about what was actually

happening between them. The family then said that this should not
happen again.
[25]
The third time that the complainant came
to Mr . Tomi, she was afraid to tell him what was happening. He
decided to take her to
her aunt and his brothers in Coligny in the
hope that she would tell them what the problem was between herself
and the appellant.
He took her there during a weekend and the
feedback which he got on the same day was that the complainant had
said that the appellant
had been having sexual intercourse with her,
which she was afraid to tell Mr. Tomi about. He confirmed this with
the complainant.
He then told the complainant to lay a charge against
the appellant. He said in cross-examination that she told him after
three
or four days that she had gone to the police and that her aunt
that told her that she should also see the social workers. Mr . Tomi

said that he was afraid to go back to the appellant because the
appellant had promised to shoot him should he see him again.
[26]
The appellant testified in his own
defense. His version was a complete denial of all the allegations
against him. He denied that
he raped the complainant a week after the
death of his wife and said that his wife's mother came to stay with
him in the house
for a month of mourning. According to the appellant,
his relationship with the complainant was fine and it was only after
he realised
that the complainant was involved with boyfriends that
everything turned around. No one ever reported to him that the
complainant
had complained about his sexual abuse of her and said
that he heard this for the first time when the police approached him
about
this. He knew the two girls that usually accompanied the
complainant and said that they did not enter his house. He did not
know
why. He did not remember ever locking the complainant in the
house as she testified . Upon becoming aware that the complainant was

involved with boyfriends, he started to intensify discipline. He
realised that she was involved in a love relationship with a boy
who
lived in the same street and became suspicious when she went to his
house for a long time. He denied that he assaulted the
complainant
with a sjambok and said that he did not physically punish the
complainant. Up until 2011 he never assaulted the complainant
with a
sjambok.
[27]
The appellant said that his relationship
with the complainant's uncle who had testified had been fine until he
appeared in court.
He was asked whether the uncle ever approached him
about the complainant having reported to the uncle that the appellant
had assaulted
her with a sjambok and had slapped her and beat her
with his fists. The appellant said that the uncle came to his place
and that
they sat down with the complainant and that they reprimanded
the complainant about what she was doing . He denied that the
complainant
had gone to the uncle to complain about his treatment of
her. The obvious question to ask is why the uncle would have gone to
the
appellant to discuss anything about the complainant if the
complainant had not reported anything to the uncle. The appellant
denied
that the uncle ever said that the complainant had reported to
him that the appellant had beaten her with a sjambok and physically

abused her or raped her. He denied that he told the uncle that the
complainant was selling her vagina.
[28]
The appellant denied that he ever found
the complainant and her boyfriend P[....], who he confirmed was the
one living in a house
in the same street, having sexual intercourse.
He denied that he assaulted the complainant with a sjambok on that
day. He also
denied that he threatened and stabbed complainant with a
knife on that day.
[29]
The appellant remembered the day when
his neighbour Ms. M[....] came to his house when he told her that he
was reprimanding the
complainant for not washing the dirty dishes. He
said that Ms. M[....] asked the complainant why she did not do that.
He denied
that Ms. M[....] ever asked him about the injury on the
complainant's finger or about raping the complainant.
[30]
The appellant also denied that he became
aware that the complainant had gone to Mr. Pitso and thc;1t he had
then threatened to kill
her and taken her to Lichtenburg. The
appellant was asked whether the complainant stayed with him until
2011. He said that he could
not remember whether it was 2007 or 2008,
but that the complainant left his house at that stage after she
became involved with
a second boyfriend. At that point, he said, his
relationship with the complainant was fine. I find this statement
surprising in
light of the appellant's strong feelings about the
complainant having boyfriends.
[31]
The appellant was asked about the complainant's admission to the Park
Med hospital. He said that
he was contacted by the domestic violence
officer to come to court. He testified that the complainant then said
to the domestic
violence officer that she wanted the appellant to
allow her boyfriend to sleep with her in his house, that he had
refused because
she was not yet married and that the complainant said
that she was suffering from depression and wanted to be admitted to
hospital,
to which he agreed. He denied that he was ever involved in
any of the sessions with the psychologist Ms. Booysen or Dr. Naidoo.

The appellant was reminded that the complainant had testified that he
had been contacted to take part in a first session. The appellant

then said that he and the complainant did have a session with Dr.
Naidoo but that no mention was made about him raping the complainant.

He said that the complainant was admitted to the hospital for two
weeks.
[32]
The appellant said that during the
period of nine years from 2003 until 2012 no police, doctor,
psychologist or anyone ever contacted
him. He thought that the reason
why the complainant lied about what he had done to her might be that
he did not agree that she
could sleep with her boyfriend in his house
and that she may have assumed that he did not like her or love her.
[33]
The appellant was asked in
cross-examination whether he had ever given the complainant a hiding.
He said that he once used a belt.
This was when the neighbour, Ms.
M[....], came to ask what they were fighting about. He was asked why
he had, in answer to a question
by the court, the said that he only
disciplined the complainant verbally and never mentioned that he had
used a belt. His unconvincing
answer was that there had been many
questions.
[34]
The appellant denied that the
complainant had sought a protection order against him because of the
fact that he was assaulting her.
He said that the protection order
was about her depression and that she was asking to be referred for
medical attention. He was
surprised that the complainant did not
approach him to ask for medical help as they had a good relationship.
It appears from the
application for a protection order, which was
handed in and admitted in evidence, that the complainant reported to
the domestic
violence officer that the appellant had since the death
of her mother been abusing her by assaulting her with a sjambok, that
he
had stabbed her with a knife in 2007 and had threatened to kill
her.
[35]
The trial court was critical of the fact
that the state had not called the complainant's boyfriend P[....],
the police officer Mr.
Pitso, the domestic violence clerk, the
psychologist Ms. Booysen or the complainant's aunt or aunts to
testify. The court, however,
found that the complainant's evidence
was corroborated by those witnesses who did testify. The court then
proceeded to deal with
the evidence of each of those witnesses.
[36]
In regard to the denial by Ms. M[....]
that the complainant had showed her her cut finger and had told her
that the appellant had
raped her, the court found that Ms. M[....] 's
position must be understood. Having to give evidence incriminating
the appellant
put her in a very difficult position. She is a
79-year-old sickly woman who resides next to the defendant with whom
she was on
good terms. The learned magistrate said in his judgment
that Ms. M[....] seemed to be reluctant to volunteer information
about
what happened and to disclose information that the complainant
came running and crying to her one day as a result of which she went

and knelt down before the appellant and begged him not to assault the
complainant. She only revealed that information after it
was exhorted
from her by the prosecutor.
[37]
In regard to Ms. Jonas and Ms. M[....],
the court found that their evidence was plain and straightforward and
that they were not
shaken by cross-examination. It found that they
sufficiently corroborated the evidence of the complainant in so far
as her interact
ion with them was concerned and that it had no reason
to doubt the veracity of the evidence of both Ms. Jonas and Ms.
M[....].
The court further found that, although warrant officer Pitso
was not called to testify, it was satisfied on the available
information
that the complainant did report the alleged rape to the
Police Child Protection Unit in 2007.
[38]
The court was not impressed with the
appellant's evidence that the reason why the complainant's uncle, Mr.
Tomi, had come to his
house was to help him reprimand the complainant
for having love relationships. The court referred to Mr. Tomi's
evidence that the
complainant had come to his house crying and
complaining that the appellant had beaten her up and that he had gone
to the appellant's
house to reprimand him to stop doing that and that
there was a second time that the complainant again came to him to
complain that
the appellant had beaten her up. The court also
referred to his evidence that, after the complainant 's aunts told
him in the presence
of the complainant that she had just told them
that the appellant had had sexual intercourse with her, he convened a
family meeting,
including the appellant, where this was discussed and
when the appellant threatened to shoot him. The courts found that it
was
improbable that Mr. Tomi would go to the accused to help him
reprimand the complainant if the complainant had never complained to

him about the Appellant 's conduct.
[39]
The court found that the appellant 's
claim that what the complainant wanted by applying for a protection
order was that he should
allow her boyfriend to sleep with her in his
house was untrue. The learn ed magistrate pointed out that the
application for the
protection order nowhere indicated that the
complainant asked for what the appellant said she was demanding. What
the application
reflects, was that the complainant had been
assaulting her.
[40]
It was argued on behalf of the appellant
before the trial court that the complainant had had ample opportunity
to report the rape
and ask for help, implying that she should not be
believed when saying that she was sexually abused as she continued to
live and
behave normally. The court disagreed with the argument and
said that the behaviour of complain ant s in sexual abuse matters
differs
from one complainant to the other and that it should be
appreciated that when the alleged rape incidents started, the
complain
ant was still a child of about 14 years old. She did report
the rape to the Child Protection Unit in 2007, but nothing came of it

because the appellant found out about the report and took her to
Lichtenburg and also took a cell phone away. The court referred
to
the fact that rape is a serious, humiliating and degrading experience
and that it cannot be expected of a complainant to open
up to
everyone, but that the complainant did tell Dr. Naidoo that she had
had sexual intercourse with both the appellant and her
boyfriend,
that she did not know who the real father of the child was and that
she was even willing to undergo paternity tests
to find out who the
father of her child was
[41]
The court further found that the appellant's evidence that he had a
good relationship with the
complainant and that he did not assault
her but was only disciplining her verbally not to have a love
relationship while she was
still attending school, was not the truth.
The court considered the possibility of the complainant having an
ulterior motive against
the appellant and said that it appeared that
the appellant was refusing to accept that the complainant was really
depressed by
what she had experienced over time and that the
appellant's claim that she was depressed and wanted to be admitted to
hospital
because he did not want to allow her boyfriend to sleep with
her in his house, was without substance and did not make any sense.

The court did not accept that the complainant had an ulterior motive
to falsely implicate the appellant.
[42]
The court concluded that it was satisfied that the complainant told
the truth and that her two
friends were credible witnesses whose
evidence could be relied upon and in the face of which the
appellant's defense could not
stand. It found that the evidence
against the appellant was so overwhelming that his version should be
rejected as false.
[43]
It was submitted on behalf of the appellant that the court
misdirected itself and erred by finding
that the prosecution had
established the appellant's guilt beyond reasonable doubt on all
counts, alternatively by not finding
that the version of the
appellant was reasonably possibly true. In this regard, it was argued
that the learned magistrate said
in his judgment that he was not in a
position to hold that the appellant had sexual intercourse with the
complainant more than
once because the complainant described only one
incident of rape between 2003 and 2007.
[44]
The argument is based on a misunderstanding by counsel of the
judgment of the court
a quo.
When making the statement, the
learned magistrate was not referring to count 2 in terms whereof the
appellant was charged for raping
the complainant more than once. The
magistrate was referring to count 1, in terms whereof the appellant
was charged with raping
the complainant during the period 2003 to
2007. During her evidence, the complainant described one incident of
rape which occurred
a week after her mother's death. Although she did
say during her evidence in chief that the appellant thereafter
continued to sleep
with her, she did not give any particulars of any
specific incident of rape. That is clearly the reason why the learned
magistrate
said that he was not in a position to find that the
appellant had sexual intercourse with the complainant more than once
during
that period.
[45]      It was
further submitted on behalf of the appellant that the evidence of Ms.
M[....] was only
obtained after the complainant had testified and
that the trial court should have been aware that her evidence could
have been
coached. There is, however, nothing to support the
submission. Counsel for appellant did not point out any part of her
evidence
which could be an indication that she had been coached.
Furthermore, she was asked in cross-examination whether she had come
to
court on the first day of trial, when Ms. Jonas testified, to
support Ms. Jonas and the complainant. She confirmed that she was

present, but said that she was sitting outside the court during Ms.
Jonas' evidence. She was further referred to the fact that
her
statement was only taken by the police after Ms. Jonas had testified
and asked whether the testimony of Ms. Jonas was discussed
with her.
She said it was not discussed. The point was not taken further.
[46]      The approach
to be adopted by a court of appeal when considering findings of fact
by a trial
court was stated as follows in
S
v Hadebe and Others
[1]
:
"Before considering these submissions
it would be as well to recall yet again that there are
well-established principles governing
the hearing of appeals against
findings of fact. In short , 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. The reasons why this
deference is shown by appellate courts to the factual findings of the
trial court are so well known
that restatement is unnecessary."
[47]      I was not
able to find any misdirection by the trial court in its assessment of
the evidence
before it. The learned magistrate dealt fully and
comprehensively with all the evidence before court and in my view
correctly concluded
that the state had proved the guilt of the
appellant beyond reasonable doubt on all three counts.
[48]      In the
result, the appeal is dismissed with costs.
J W LOUW
JUDGE
OF THE HIGH COURT
I
agree:
[1]
1997 (2) SA C R 64
1 (SCA) at 645

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