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[2019] ZAGPPHC 151
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NDPP v M and Another (A226/16) [2019] ZAGPPHC 151 (3 May 2019)

IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: A226/16
3/5/2019
NDPP

RESPONDENT
And
NM

FIRST APPELLANT
FM

SECOND APPELLANT
JUDGMENT
KHUMALO J
[1]
The Appellants, NM and FM, are husband
and wife and 1
st
an d 2
nd
Appellants, respectively. On 14 August 2014 they were both convicted
by the Regional Magistrate Court, Middleburg on 2 two count
s of rape
in contravention of s 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 (the Sexual
Offences Act ),
and one count of assault perpetrated against their two young
daughters, Sand A ("the Complainants" ).
On 12 March 2015
each was sentenced to 22 years imprisonment on each count of rape,
which sentences were to run concurrently and
6 (six) months
imprisonment on the count of assault that was wholly suspended for
three years.
[2]
NM, who is the Comp lain ant s' m other
was in addition convicted on a further count for contravention of the
provisions of s 54
(1) of the Act 32 of 2007 for failing to report to
the relevant authorities the rape of the children by FM , their
father. She
was on that count sentenced to twelve months imprisonment
wholly suspended for four years.
[3]
The rape charges were read with the
provisions of s 51 (1) of the Criminal Law Amendment Act 105 of 1997
("the Prescribed Minimum
Act"), which prescribes upon
conviction the imposition of a sentence of life imprisonment, unless
there are substantial and
compelling circumstances that justifies the
deviation from the prescribed minimum sentence.
[4]
With leave of the court a quo, the
Appellants are appealing against both conviction and sentence imposed
on the two counts of rape.
The appeal is opposed by the Respondent,
the National Director of Public Prosecutions (" NDPP").
[5]
On the other hand, the NDPP is with leave of this court, cross-
appealing in terms
of s 310A of the Criminal Procedure Act 51 of 1977
(the Act) against the effective sentence of 22 years imprisonment
imposed on
each of the Appellants on the 2 counts of r ape, pleading
for the prescribed minimum sentence of life imprisonment to be
imposed.
The hearing of the appeals was delayed with several
postponement for the purpose of reconstruction of part of the record.
The record,
transcribed in Afrikaans consists of 2260 pages.
[6]
The Appellant s were duly represented throughout the trial. They both
pleaded not
guilty to all the charges. They neither proffered a
statement in plea explanation nor testified, exercising their right
to remain
silent in terms of s 35 (h) of the Constitution.
Background Facts
[7]
At the time the offences were committed Complainants S and A stayed
with both MN and
FM, their mother and father. The Complainants S and
A were found to have been raped by FM since 2008, from the time when
S and
A were aged 4 and 8 respectively, the situation enduring for a
period of 3 years until on or about 2011 when the rapes were
discovered
and their parents arrested and charged. At that time of
the arrest A was 7 years old and in grade 1. She had complained to
one
Ms Serfontein, her Grade 1 teacher about a
certain Ounooi, a
family member
who was hurting her. As a result of that report and
the fact that A was also having hygiene problems, struggling to keep
up with
her school work and frequently absent from school, Serfontein
arranged for A to be examined by a certain Dr Geldenhuys. That led
to
the arrest and bringing of charges against both their parents. The
physical examination of the children later revealed that
A was
without a hymen and S was left only with remnants of the hymen.
[8]
The Appellants were convicted in the court
a quo
following the
testimony of the Complainant s who were the key witnesses and that of
5 other state witnesses that included three
health professionals, two
of whom are a medical doctor and a forensic nursing sister who
conducted the physical and medical examination
of the Complainant s
and completed the J88s. The third health professional is a medical
practitioner, who gave expert evidence
on the J88 findings. The other
witnesses were Serfontein, A's Grade 1 teacher and a police forensic
social worker who handled the
forensic investigation of the
Complainants. No evidence was led on behalf of the Appellants. At the
end of the trial the court
a quo found the state's evidence to have
established the Appellants' guilt beyond reasonable doubt on all the
charges.
[9]
The Appellants are appealing against their conviction on the ground
that the court
a quo erred in finding that the St ate proved the
charges against them beyond reasonable doubt, misdirecting itself on
the facts
and in law, for the reason that:
[9.1]
The court failed to attach due weight to the contradictory evidence
of both children, and in so doing
paid lip service to the cautionary
rules that are applicable to the evidence of children. The court
should have been mindful to
the fact that the children were the only
witnesses that gave direct evidence as to the alleged offence of rape
and assault. He
endeavoured to justify the various contradict ions
with reference to the evidence of Badenhorst, which is indicative of
the extent
of the misdirections of fact it committed;
[9.2]     The
court a quo usurped the functions of an expert by referring to and
applying its own research to
the facts of the case, whilst that
evidence was not given in court to be tested by way of cross
examination, thereby misdirecting
itself by committing a legal error
as to what the law required of the court during the evaluation of the
evidence;
[9.3]     The
court misapplied the legal principle relating to the Appellants'
silence to the peculiar facts
of the case that was before him when
the two children were the only witnesses who gave direct evidence as
to all the charges brought
against the Appellant s by the State. All
the other evidence is circumstantial, except possible the evidence
relating to the injuries
to their respective hymens;
[9.4]     The
inference that the injuries caused to the hymens of the children
could not have been caused by
anything other than penetration is not
supported by evidence.
[10]      In respect
of the leave granted to the Appellants to appeal against the imposed
effective sentence
of 22 years imprisonment on the 2 counts of rape,
it is the Appellants' respectful submission that notwithstanding
leave been granted,
should the conviction be confirmed, they concede
that the sentence imposed was appropriate with no misdirection
committed by the
court a quo. In that instance they were not
proceeding with their appeal against sentence, however oppose the
cross appeal by the
Respondent.
[11]
The state in the meanwhile contends that the trial court misdirected
itself and vitiated the
exercise of its discretion when the
prescribed sentence of life imprisonment on rape convictions was not
imposed. Alternatively,
it alleges that this honourable court is at
large to interfere with the sentence imposed as the disparity between
the sentence
of the trial court and the sentence this court would
have imposed is such that it can only be described as "shocking"

or " disturbingly inappropriate."
EVIDENCE LED
[13]
The matter was decided on the version of the state, as already
pointed out, being the direct
evidence emanating from S and A the two
child Complainants supported by that of various expert s. At the time
their testimony,
S was 13 and A's was 7 years old turning 8. The
proceedings were for that reason held in camera. They both appeared
and testified
through an intermediary, following a report
on
their
mental competency prepared by Ms Mara Christina Badenhorst ("
Badenhorst"),
a
forensic social worker attached to the
South African Police Service with the rank of Captain, for the
purpose of the provisions
of s 170A of the Cri minal Procedure Act 51
of 1977 ( "the Act"}. Badenhorst also testified following
the testimony of
A and S and her report admitted in evidence in terms
of s 212 (4} of the Act.
[14]
S, the first to lead evidence testified that she and A were injured
between their legs by FM
during various incidents. She particularly
pointed out that the day it happened for the first time it was on the
morning following
her 10 t h birthday. She had woken up and found FM
sleeping next to her in her bed. FM purported to have passed out on
her bed.
At that time MN, came into the room and asked FM what he was
doing in S' s bed. FM stood up and walked out of the door after
telling
Sand A not to tell anybody about what had happened. Her
vagina was sore. She would occasionally wake up with her vagina sore
and
could not remember what had exactly happened the previous night,
neither could she remember the reason for the pain she was feeling
on
her vagina or the time she was knocked out to sleep. She told MN
about the vaginal pains but MN dismissed her complain s and
called
her a liar. Following that incident there were numerous others where
she would be knocked out to sleep and wake up in the
morning with a
painful vagina. She could not understand what made her vagina sore.
She would go to bed not being sore, fall into
a deep sleep throughout
the night until the next morning and when she wakes up her vagina
will be painful. She however only found
FM once in her bed. Every
time it happened MN would have given her sleeping or stomach pain
pills before going to sleep, she will
then not wake up until the next
morning, always with a pain in her vagina. She was never before taken
to a doctor and did not know
where MN got the pills she was giving
her. She told MN about this occurrences but MN just denied and called
her a li ar.
[15]
According to S, A also complained of experiencing pain in her private
parts. A has never told
her who was responsible for her pain,
but
she knew that it was FM as she had seen FM on one occasion lying on
top of A.
At the time they were staying at Jack Hindon Street.
She hear d A crying in the night so she went to check on A and found
FM who
was wearing only his pant s, on A's bed lying on top of a
fully clothed A. FM was busy trying to tie A' s hands to the bed post

with cable ties . When she asked FM what he was doing, A answered
that FM was busy making her sore. A was crying. There were condoms

next to the bed. MN was also in the bedroom but she could not
coherently explain MN's role. She how ever said MN did not say
anything
to MF instead she told S to leave the room. She did not
report the incident to anybody as she was scared that FM will again
make
her sore.
[16]
Furthermore, S explained the impact of the trauma they suffered as a
result of the incidents.
She said she was always worried, especially
when she went to sleep she thought a lot about these incidents. She
experienced some
changes suffering from stomach cramps, felt dirty
and again start ed wetting herself. Her
baby sister A suffered
from nightmares and wet herself at night.
MN would make her wash
A's soiled bedding and clothes. The whole thing affected them at
school. They were behind with their school
work and their school
attendance was not good. They stayed at home time and again due to
the fact that they time and again complained
of vaginal pains. MN
would sometimes write a letter to school to explain their absence,
the contents of which were not the truth.
[17]
The defence cross examined S ab out a person called Ounooi. She
explained that the 20 year old
Ounooi once stay ed with the family
for a few months at their last residence (they have moved residence a
couple of times). She
was never hurt by him .
S explained that MF
told her and A t o say that it was Ounooi who was hurting them but
she did not tell anybody that . However when
FM and MN found out that
A had in fact told someone that it was Ounooi who was hurting them,
the two of them were bitten, kicked and thrown with objects like
shoes and what ever else MN an d FM could find to punish them and

also hit them by hand by both MN and FM . Prior to that, in the past
the punishment like that used to happen when they were naughty.
After
A reported about Ounooi, their lives continued to be difficult
although it was then not so frequent. The incident had intensified

over a period of two years.
[18]
S proceeded to tell the court that she was apprehensive when they
were moved from the custody
of MN and FM, as she was worried about
what is going to happen to them in the future. She did not know
whether they were going
to be taken in by anyone. She however did not
want to stay with the Appellant s because of what they did to her.
She was in a better
position when they were taken out of that
situation. They stayed for three days at Granny Liz. Thereafter in
November 2011they
went to stay with Ms Lombard for 3 months. M s
Lombard was present when the police came to talk to them about the
happenings at
their home. Ms Lombard did not treat them well. At the
time they did not feel like talking to the police. After the police
left,
Lombard reprimanded her for not wanting to talk to the police.
She had discussed with Lombard certain aspects of the incidents at

their home, including FM burrowing her, making her private part s
sore. She had meant that FM wanted to touch her private parts
even
though she has never seen him do that . She said she based such an
allegation on the fact that her private part s were painful.
She had
also told Lombard that she had seen FM touching her private part s.
With that she said she had thought that FM did touch
or fondle her
private part s. S indicated that she did not make a statement to the
police on the day when she and two of her siblings
were taken away
from the custody of their parents but made her first written
statement on what has happened on 8 December 2011.
She also explained
that the incident happened a long time ago.
[19]
Furthermore S had explained that before
2008 they stayed at her maternal grandparents' home in Hoogstraat.
She never experienced
any pains there and nothing inappropriate or
indecent had happened then, except that if she misbehaved she would
receive a slap
from her parents and be smacked on her bums. She
stayed with her parents in the house whilst her t wo siblings stayed
in a tent
in their grandparent's yard. At Jack Hindon Street they
suddenly had their own bedrooms each one with her own bed. A's had a
headboard
and she did not have one, that is the heardboard where one
time FM tied A' s h ands on it .
[20]
She confirmed during the cross
examination that she was familiar with a certain Dani e Smit, a 26
year old neighbour that stayed
behind their home at Luttig. Danie was
friendly and played wit h her and her siblings when their parents
have gone somewhere. The
Appellants would sometimes when they go
somewhere, send them away to go and play. Danie' sister, Corn e and
Corne' s son, the 7
year old Bart, would also play wit h her and her
t wo siblings A and their younger sister.
Her
parents did not approve of her friendship with Danie and his family.
FM sometimes would hit her on the
back and head when he fetches her from Danie's place. A suggestion
was made through questions
asked by Van Rensburg that S had more than
a platonic relationship with Dani e which S vehemently denied. S also
denied that she
and Danie had sex or that she had one time got away
with Ounooi.
[21]
S also testified that FM once fondled
her buttocks and breasts and smacked her on her bums. FM also
fastened her hand s with a rope
basin g this allegation on a fact
that she had red marks of a rope on her arms around her hands and had
also found a trek rope
and a tong near her bed when she woke up the
next day.
[22]
At the end of her testimony she spontaneously asked the court to
speak to her parents and said
to them "Mommy I love you and hope
you will forgive me, because I had forgiven you."
A's testimony
[23]
A at the beginning of her testimony was reluctant to testify. She
seemingly gave vague answers.
She however afterwards cooperated.
According to A she had seen FM hurting S' s private parts and pulling
them.
The incident happened during the day in S's room.
Also
other various incidents happened when she was with her sister and
both Appellants. Her grandfather at the time stayed away
in another
house. Her father and her grandfather being two different persons.
She did not know what her grandfather's name was.
It was FM , her
father who made her and S sore. She had seen FM touch S's and her
private parts. S one time was lying down naked
and FM still dressed
on top of her. At the time MN was in the kitchen. Such an incident
also happened at another time when MN was
watching TV. MN would
sometimes leave the house during the incident. When she reported
these incidents to MN, MN
showed no concern.
The last time MN
merely trivialised her reporting by saying that "ag toemaar."
Whilst FM had hurt her in her bedroom a
lot of times. Sometimes FM
will pull or squeeze the hair on her wrong place. During that time
she would be lying down and FM on
top of her. Both will be naked
during these incidents. On another incident FM tied her on the bed
post. Her mother MN was aware
of these happenings since she once
passed by the bedroom during that time. Sometimes MN would not be
there or she will be in the
kitchen or in the sitting room. She
informed S of everything but no one else. The reason being that it
was not other people' s
business. She also told S that she has seen
FM hurting her. She later told the police what happened after the
police came to her
school. She was not aware who put them in the care
of the police.
[24]
According to A, Ounooi was someone who stayed with them. She denied
that Ounooi ever hurt her
or that she told anybody that she was hurt
by Ounooi. She confirmed that FM threatened to punish her if she told
anybody how FM
was hurting her. She confirmed that nobody told her
what to say.
[25]
Under cross - examination she agreed that she should have told her
foster parents, Ouma Liz,
Lombard , her teacher in Grade 1 Ms Dalene
Serfontein and Me Thalita if somebody had hurt her between her knees.
She was con fronted
with the fact that she said it was her
grandfather who made her sore and she responded that she was
mistaken. She confirmed that
she has not told Ms Lombard with whom
she was staying or Uncle Odie the investigating officer, her granny
Doty about the happenings
at her parent's house. Then again said the
only person she told was Uncle Odie. On her relation ship with Oom
Danie her neighbour
she said Danie never came to their place to play.
She reiterated t hat it was not Ounooi who hit or hurt her. She could
not remember
exactly when the said incident with her was supposed to
have happened but had also said that it was also when she was in
Grade
1. She said she was hurt by his father and grandfather and
could not remember exactly when the molestation took place.
[26]
She also during cross examination said MN and FM had hurt her. MN
had tied her arms whilst FM was fondling her private parts. MN
also
did the same with Sin one incident. When she was confronted with the
fact that she has not placed this evidence before court
in her
evidence in chief, her reaction was that she has forgotten about this
information . She had seen FM hurting S many a times.
The instances
when FM hurt S was always during the week. In one of the incidents S
cried and screamed, whilst MN was holding her
down. MN was not in all
incidents always in the room but only in one incident. A was lying on
the floor when FM did these things
to her. It never happened on the
bed. Also at the time when S was involved the incident happened on
the floor. She could not remember
why FM tied them. She also could
not remember why FM was still clothed when he was doing the alleged
deed to her and did not see
him taking off his pants. A could not
describe how that happened when she was not naked.
[27]
She admitted that she had at the
beginning told the court that nothing funny has happened with S when
she was sleeping or with her.
It was
also her testimony that MF had lain on top of her on his stomach on
the floor. It could have been maybe more than ten times
when
her father had inserted his private parts into her vagina. She stood
still and watched how her father made her sore.
Her
mother held her down whilst the dad penetrated her. Her vagina was at
that time very sore. FM had done the same to S, it was
very sore to
her. She denied that FM was supposed to have tied him and his sister.
She said she was punished by FM and MN either
by a slashing on her
hands or buttocks. When she was naughty FM and MN would hit her with
a cane. One time NM slap ped her on the
face that she fell over the
table. She denied ever been kicked or hit with an object on the head
by the Appellants. She objected
to the denial by the Appellants to be
all lies.
[28]
A had also confirmed in her testimony to
have received school clothes from the school. She could not remember
if the reason she
received the clothes was because her clothes were
dirty. She denied that when she was in Grade 1 she soiled or wet her
school clothes.
She however spontaneously testified that she went to
the toilet a lot of time s that year.
P
Serfontein
[29]
Petronella Serfontein ("Serfontein")
is A's Grade 1 teacher. It was through her vigilance that the rapes
were discovered
and Appellants arrested. Her evidence is therefore
crucial not only for the purpose of conviction dealing with the
question of
consistency and the symptoms and signs of the alleged
rape that were observed from A's conduct and appearance, but also for
sentencing
as it highlights how A as a child was affected by the rape
during her everyday life. The evidence was correctly extensively
dealt
with by the court a quo. I therefore do not agree that it would
not be of any help to this court.
[30]
Serfontein's testimony is that she had,
at the beginning of 2011 noticed a learner in her class who had
scholastic problems involving
her school work. The learner was
extremely sensitive, always seeking protection, understanding
(rapprochement) and acceptance from
her. That learner was A. A also
looked anxious, withdrawn (strained disposition) and had a very
strong unpleasant body smell. A
told her that she felt uncomfortable
and uneasy about one Ounooi, who comes into her bedroom at night and
make her sore. A also
mentioned that she was going to hit Ounooi . As
a result of that and A's scholastic problems including her occasional
absence from
school she referred A to Dr Geldenhuys, the schools
Educational Psychologist after obtaining the Appellants written
permission
.
[31]
Following on the report that was
received by Serfontein from Geldenhuys, Serfontein opened a criminal
case against Ounooi. In the
meanwhile on or about February to March
2011, a Social Worker, one Ms Lynette Du Preeze filed her applicat
ion to pay a visit to
A's previous home. FM visit ed the school ,
very infuriated about that. He blamed Serfontein of accusing him of
molesting A. He
threatened to open a case of
crimen
injuria
against Serfontein. At the
time only Ounooi had been identified by Serfontein as the suspected
molester.
[32]
A' s scholastic problems did not subside
but got worse. For the rest of 2011 she was absent from school a lot
of times. According
to the register handed to the court by Serfontein
she was absent for 21 days for the school period starting from
January to September
2011. The school only received a letter
explaining the absence of A from school less than half of the times A
was not at school.
A's hygiene also got worse, Serfontein would
weekly sent her to the second hand clothing table to get clean
clothes. Her school
dress always had brown stains at the back,
apparently from a discharge . Serfontein, as a result sent A to be
examined by Sister
Khumalo, a visiting school nurse.
[33]
During 2012 Serfontein once also
noticed marks like lacerations on A's forehead. The other time there
was also a mark on A's face.
It however did not happen a lot. A
failed Grade 1 in the year 2011 and had to repeat the grade in 2012.
She then was in Ms Davel's
class. Serfontein kept daily contact with
her. She said A was noticeably less stressed, better taken care of
and had gained self
-confidence again. Her school work got so much
better which Serfontein considered to be a remarkable improvement.
[34]
Under cross examination Serfontein admitted that A was not the only
learner that was sensitive but
she stood out more than the others in
her sensitivity in the light of her need to be attended and taken
care of, as well as her
physical bodily smell. She indicated that she
took A's
disclosure regarding Ounooi to be an urgent cry of a child and in the
light of this communication she thought that A might
be a victim of
rape or molestation . At the time A did not show any visible scars on
her face. She therefore reported the incident
to the Department and
to Dr Geldenhuys with the permission of MN. She request ed Geldenhuys
to investigate and assess A's emotional
and scholastic strength and
also the situation around the allegations that A had made with regard
to Ounooi and given the signs
that indicates possible abuse or
molestation. She later forwarded Geldenhuys' assessment report to Du
Preeze. And on or about August
to Sept ember 2011 Odendaal and
Captain Badenhorst became involved.
[35]
Serfontein believed A's allegation s
that she has been hurt. She was also aware that some children may
have a very fertile imagination
but did not believe they can imagine
being hurt or injured. Besides she did not regard A t o be known to
have a fertile imagination.
When she was confronted with A's
statement that Ounooi did not hurt her, she responded that either
pressure or tension could have
led to the contradiction. According to
her a child's mind/ psychic can also suppress such happenings. She
agreed that A was not
the only learner who had to repeat a school
year but in A's case it was exacerbated by A's constant absence from
school and also
her lack of stability and emotional vulnerability .
It looked like A was the only learner with scholastic problems that
need ed
rapprochement/more understanding .
[36]
In the light of A' s clot h es and type
of stains, Serfontein testified that it was obvious that her
discharge was what caused the
stains. A's smell according to her was
also from the, discharge which was not the only smell, she also had
rather a very strange
smell which she could not describe. Serfontein
refers to it as a "bitter unpleasant smell." Serfontein
said she was not
aware of A having had a bladder problem. If A did,
she said she would have expected FM / M N to have mention ed it to
her. They
also did not give her any medication for A. When sister
Khumalo assessed A' in Serfontein's absence, she forwarded A's
clothes
that were stinking with wet urine to Serfontein to take them
to the laundry to be washed.
[37]
Late in 2011, Serfontein said she during
the visit of the social worker noticed that A' had a wound on the
head. On enquiring from
A about it, A told her that she fell over the
table. She says she found the answer suspicious.
Captain Badenhorst
[38]
Mara Christina Badenhorst is a forensic
social worker who also holds the rank of Captain in the South African
Police Service. She
prepared the mental competency report after
conducting a forensic investigation on the Complainants. The matter
was referred to
her for a forensic investigation by Warrant Odendaal.
She had as well, after a couple of interviews with A and S prepared
an assessment
report in respect of A and compiled what she referred
to as a timeline {periodical) report in respect of S. The reports
were admitted
in evidence in terms of s 212 (4) of the Act. The
defence did not object thereto. She confirmed that none of the 2
children were
known to her prior the reports. The report was handed
as Exhibit C and D. The focus of the report was to dig out the
triggers in
the memory mechanism so that the child can remember the
incidents. After that she continued with the assessment which
involved
assessing the child's cognitive development with specific
emphasis on the chronologic al order that a child can remember. Also
concerned with the child' s memory, the recalling of information in
the child's development especially in instances of children
who
cannot spontaneously volunteer the information. Whilst the timeline
report ' s focus was on the happenings and attempt to lay
them in a
chronological order. She indicated that the age of the child plays a
very significant role in this instance seeing that
the age phases of
the child are connected with the state of their intelligence to
narrate it again.
[39]
Badenhorst conducted five interviews
with A with the goal of obtaining a statement from her in a
developmentally sensitive unbiased
and truth seeking manner. Which
will support accurate and fair decision making in the criminal
justice system. She alleges to have
not received any inform at ion
regarding the alleged offence before she assessed A. The assessment
was done when A was 7 years
and 4 months. She identified that the
actual manner how a child operates, that a child is able to see event
s from another person'
s perspective. The child understands that
disclosure of abuse can lead to serious consequences for the
perpetrator and be more
concerned about the consequences for the
perpetrator than for the consequences for herself if the abuse should
continue. She said
at this stage thoughts are egocentric and
therefore children in this stage are susceptible to remember in a
disorderly way. This
leading to a child giving different statements
in different situations.
[40]
She noted that she received information
from Geldenhuys the Educational Psychologist, stating that A was
functioning on a younger
level than her age. Her verbal and language
ability was 2 years behind her chronological age. Her numerical
ability was also a
year behind her chronological age. She also
functions cognitively at a younger level than her peers. She, during
the forensic interviews
was able to disclose basic details regarding
her alleged abusive experiences. A was also after she was asked to
differentiate between
wrong and right able to show a basic
understanding and she committed herself to telling the truth.
[41]
Furthermore A was not able to give an
account of how many times she was allegedly molested and sexually
abused, due to lack of understanding
of the numbers. However she was
able to describe her alleged experiences in an age appropriate way
and able to identify incidents
where she was allegedly abused. She
struggled with chronology but she was able to communicate her abusive
experiences under her
parent s.
[42]
Badenhorst also highlighted in respect
of endurance under cross examination that due to her age, A will find
certain linguistic
problems like the handling of abstract concepts
during questioning, processing complex questions and complex verb
phrases. Make
errors with passives, the difference between ask and
tell with pronoun references. A will easily get confused with complex
contradictions,
for example multiple negatives in a sentence.
Organising in an adult satisfactory way the details of narratives.
Still believes
that adults in general speak the truth and unequipped
to deal with adult insincerity such as sarcasm, irony and so on.
[43]
Serfontein testimony was also considered by Badenhorst specifically
with regard to the terrible
odour that came from A's clothes and her
body offensive smell. And A's inability to control her bowel and or
bladder and she would
have faeces on the back of her school dress.
The fact that she was withdrawn always seeking acceptance and love.
She looked up
to Serfontein for physical contact and love. She also
referred to Serfontein's reporting that A attended classes in 2011
with bruises
on her face and forehead. She said during investigation
A expressed her wish that her parents remain in jail and that she
never
wants to see her parents again.
[44]
It was also Badenhorst's submission as in the report that A
experienced herself as powerless
against her parents' abuses. She
asked for MN's help but she was ignored. After she experienced her
mother siding with her father
in the abuse, she felt that there was
no sense in disclosing her abusive situation , as both her parents
would physically abuse
her even more if she dared to talk about what
they were doing to her.
[45]
Badenhorst's findings were that during the investigation A was able
to disclose basic details
about her alleged abusive experiences. From
the information obtained during the investigation, it seems likely
that A was exposed
to physical, emotional as well as a sexually
abusive acts by both her parents. From the investigation it seems the
impact of what
had happened to A has caused her severe emotional
trauma. Due to A's emotional and cognitive development as well as her
fears towards
the perpetrators she was/will be exposed to undue
mental stress and suffering if she was to testify in open court. It
was therefore
recommended that she testifies through an intermediary
appointed in terms of s 170 A of the
Criminal Procedure Act 51 of
1977
.
[46]
In respect of S, Badenhorst prepared by
a timeline of event s report. Badenhorst indicated to have prepared
it having made sure
that S received clear information about the
social worker's job and the ground rules for assessment. She built a
rapport in a way
that encourages S to disclose information by using
the least directive, questioning format. She had asked S dur in g the
investigation
if she could differentiate between the concepts of
truth and lies and found S to have shown an understanding of the
concepts. S
committed herself to telling the truth.
[47]
According to Badenhorst S recalled her
first alleged abusive experience to have happened in 2007. S was in
Grade 3 at the time at
CR Swart Primary School and staying with her
parents at Verdoon Street in Middelburg. S was awoken up by FM one
morning who told
her to come and sit with him in the living room. FM
started touching S above her clothes and private parts. FM continued
that behaviour
throughout 2007.
[48]
When S was almost 10 years old she woke
up one day and found FM sleeping in her bed next to her, her private
parts were hurting.
When S reported MN this, MN told S she was
lyingand thereafter MN refused to believe her when she complained to
MN about her private
parts that were hurting. During 2008 S said she
woke up about 3 to 4 times feeling sore in her private parts for no
apparent reason.
S told Badenhorst that one night whilst she was
sleeping in the living room she woke up from crying sounds coming
from where A
was sleeping. She went into the bedroom, FM and MN were
in the room, FM was performing a sexual act on A, who was crying.
According
to S, MN was standing next to FM. S had told her that since
she was in Grade 5 she has been taking medication for her upset
stomach
at night. S said she did not know what type of tablets she
had to drink as her mother told her to drink it and she trusted her
mother. According to S the tablets made her fall into a very deep
sleep . She never woke up at night or know what happened to her

during night time.
[49]
S claimed to her that A also told her that she also experienced her
private parts hurting in
the mornings and that FM was doing the same
thing (having sexual intercourse with S) to her as well when she was
asleep. S told
her she stopped telling her mother about any pain she
felt on her private parts. Her wrists were some mornings red and
bruised
but she was not able to recall what happened to her. S
reported that she always saw condoms and condom wrappers, plastic
cables
and an instrument to cut it, in her parents' bedroom. She said
she believed FM used them to fasten her hands when FM was abusing
her
at night. Whilst her mother gave her alcohol and when she refused MN
would force her to drink it .
[50]
S also recalled that A start ed to wet her blankets at night when she
was approximately 4 years
old and continued up until when they were
removed from the parents' custody . S admitted that after A start ed
seeing the Educational
Psychologist her father became more abusive
towards A. She alleged to have witnessed her parents hurting A for no
apparent reason.
As a result A could not attend school due to blue
and red marks on her body. S said FM would often hit her and A on
their buttocks,
head and back, with his fist or open hand. According
to S, MN would witness this and laugh at them. She recalled that FM
would
also touch her on her breast s, buttocks as well as private
parts. FM also allegedly told her that she was not allowed to have
boy friends as he would kill her if she gets involved with other men.
[51]
She reported that S t old her that
she witnessed FM hitting MN in the face as well as calling her
insulting names like "slut
", fat and "damn bad."
According to S, FM would also degrade her by calling her names like
damn " bad stupid"
and so forth.
[52]
She report ed that S was abused within
the familial context as well. During the investigation it was found
that S experienced herself
as powerless against the abuses,
MN
ignored S when she asked for help.
S's experience is that of MN siding with FM in the abuse. S said she
was scared to disclose her
abusive situation, as she was not able to
recall what happened to her during night time. S, now believes that
the tablets she had
to drink caused her to be in deep sleep at night
and therefore she did not know what happened to her. S stated she
felt severe
pain in the morning when she woke up. S also said NM had
said to her FM would often tell her that he will give her and her
sisters
away as he was getting tired of them. S experienced both her
parents as physically emotionally and sexually abusive and she
believed
that they would abuse her even more than A if she dared
spoke about what was happening at home.
[53]
Badenhorst reported that S was able to
report during the forensic investigation about the alleged abusive
experiences. From the
information obtained she concluded that it
seems likely that S was exposed to physical, emotional as well as
sexually abusive acts
by both her parents. She was able to give a
basic time line of her alleged abusive experiences. Due to the time
that has lapsed
since the alleged incidents as well as the number of
events. S was not able to recall the exact dates and times. S also
believed
she was drugged in order for her not to be able to recall
what happened to her during the nights.
[54]
She reported that from the investigation
it seems the impact of what allegedly happened to S ha s caused an
emotional trauma . Due
to S 'e motional development as well as the
fear towards her perpetrators she will be exposed to undue mental
stress and suffering
if she had to testify in open court. It is
therefore recommended that she testified through an intermediary
appointed in terms
of
s 170A
of the
Criminal Procedure Act.
Dr
Ehima Erhabor
[55]
Dr Ehima Erhabor is a medical practitioner who completed the J88 on
17 November 2011 on the physical
examination of A. She testified that
she on found bruises on the left of A' s forehead. The gynaecological
examination showed that
she had no abnormalities, with the exception
that the hymen was not present at the opening of the vagina. The anal
examination
also had no abnormaliti es. She explained that by
abnormalities she meant, bruises, swelling, bleeding, vagina or anal
tears, scarring
or semen. She indicated that in the 12 years she has
been conducting such examination on children she had found
abnormalities in
a very few cases.
[56]
She explained that top of the list as
the cause of the absent hymen is penetration, therefore there was a
strong possibility of
penetration being responsible. Also that 151
time penetration can cause the tearing of the hymen. However she said
she could not
say what kind of objects caused it and when such
penetration could have happened.
[57]
Under cross examination she confirmed
that she has never conducted any study or research on absence of
hymen or any abnormalities
relating thereto. She indicated that child
genitalia is a special field. She could not comment on what was put
to her that research
on young girls' hymens although very rare
indicates that girls could possibly be born without a hymen. It was
not indicated which
literature or research conducted by who and when.
Her response was that
"in
medicine anything is possible "although she personally has never
heard of that phenomenon,
she did
not rule it out. When it was argued that she cannot base her
conclusion on condition of hymen as being caused by sexual
inter
course she indicated that it was top of the list therefore could not
rule out penetration although infection, physical trauma
or bike
riding, masturbation or finger can cause
tearing
of the hymen. Recent penetration
will leave remnants of hymen. If there are no remnants there it is
possibility that the child might have been born without a hymen.
She
said however in this case it was not strange that there were no
remnants of hymen especially with repeated instances of sexual

assault, birth and more sex.
[58]
She confirmed that she took into
consideration the child's history as she was told by the caregiver
that the child has been sexually
assaulted a number of times. She
explained that the standard of practice is to start with recording
the history, then examination
followed by the findings that are
objective. They don' t base their findings on history but if history
is true it might explain
the absent hymen. She confirmed that she was
told that the child was sexually molested by an adult and that they
were dealing with
chronic sexual abuse.
[59]
With regard to a recent attack she
confirmed having been told that there was a sexual assault that took
place on A before the exams.
She confirmed that old bruises and scars
can be expected and on the other hand might not find them due to
healing. She agreed that
with chronic and recent sexual assault she
would expect an enlarged vagina which she admitted was not the case
in this instance
but on the other hand she could not confirm that it
happens in each and every case. She could not say with certainty that
the child
has been molested but as she could not find the hymen she
wouldn't know what caused it and will have to speculate as she cannot

say with certainty that she was sexually assaulted. She admitted that
there is a possibility as well that the child might not have
been
sexually molested based on the fact that there are no scars or
abnormalities. Therefore there is no clear cut case, even with
recent
sexual assault there could be physiological changes which will not
show abnormalities if it happened over a long time as
opposed to 1
st
time the day before. She also indicated that sleeping pills do not
cause amnesia but may cause a deep sleep and on waking up the
memory
will still be there. She did not say that you will have memory of the
things that happened during sleep.
F Mahlangu
[60]
The forensic nurse, Fortunate Mahlangu
("Mahlangu) confirmed to have, been involved with victims of
sexual crimes since 2005.
She holds a diploma in forensic nursing
obtained from the University of the Free State and is registered with
the South African
Forensic Nursing Association since 2006. She
completed the J88 in respect of S. She found pieces of remnant s of
the hymen that
fits with vaginal penetration. She could not say when
and how many times penetration occurred and with what. According to
her apart
from penetration there is no other cause for these injurie
s. She has never heard that hymeneal injuries can be caused by
something
else other than penetration. She confirmed having used the
colposcopy to examine S and taken photos that she saved in the
computer.
She said they did not print the photos because prosecutors
say that the photos cannot replace the J88' . However what she found

on the colposcopy is written on the J88.
[61]
According to Mahlangu if an adult male rapes a child of 5-7 years
there will not always be serious
injurie s and she said she has never
seen any gross injurie s since she start ed examining victims of
child sexual abuse. She personally
has never come across a case where
a f e male is born without a hymen , never read about it during her
years of study. It is also
not true that cycling, horse riding and
exercise can cause hymen to tear as it is an internal organ that is
not visible as it is
covered by labia minora and majora. She also
denied that a child that has been repeatedly raped will necessarily
have an enlarged
vagina. She personally has never seen an enlarged
vagina.
[62]
Under cross examination she contradicted Erhabor's testimony saying
that no woman can be born
without a hymen. She said with chronic
sexual assault the vagina stretches and with chronic penetration they
turn up not to have
these injurie s. Absence of injurie s does not
exclude sexual assault. Penetration is always possible as the vagina
expands and
would expect a tear. She said there were no clinical
findings since she found no injuries and as the rape was not reported
within
the 72 hours, therefore the injuries would have already healed
when the child was brought to her. She said only penetration can

cause scarring. She registered a white discharg e and said it was nor
mal and she mentioned it because it was there. No injuries
on labia
or vulva also on the anus.
[63]
She confirmed that she concluded that S was sexually assault ed on
the basis of the remnants
and that the remnants confirm penetration.
She said she cannot say how many times as the wounds could have
healed and not every
sexual assault leaves a scar. She said a vagina
stretches during sex and shrinks after sex. The remnants found were
white + thick
hymen and which indicates a high oestrogen. She said
men with small penis are there which might not cause any injuries.
And if
penetration is not violent she does not expect injuries. Even
when it is not consensual she still expect s lubrication and said

some victims of rape do climax during rape because it is a
physiological response.
Dr Efrat Names Barness
[64]
Dr Barness was the state's final witness. She is a qualified medical
practitioner with surgery
expertise and has been working as a
volunteer at the Teddy Bear Clinic, a child abuse clinic, since 2008.
Her work entails the
examining and conducting of forensic
assessments. She teaches the Pharma Year Medical Students on signs
and symptoms that one looks
for in child abuse. She also trains
Registrars who are in the process of becoming paediatricians in child
abuse. She is very involved
in the subject of child abuse in that she
also conducts seminars and congresses with her colleagues where they
train nurses and
doctors and specialist paediatricians who just want
to revive this examination. She said her last engagement was at the
University
of Pretoria where she lectured about 50 Doctors and nurses
on child abuse and the injuries that are found with child abuse be it

physical or sexual. She confirmed that the state subpoenaed her to
come and testify about specific aspects in this trial. One of
the
aspects was "possible research and knowledge about injuries of
the genitalia of children involved in rape cases or sexual
abuse
cases."
[65]
Barnes testimony was that the conclusion or idea that a girl's hymen
can be torn from riding
a bicycle, or a horse or such activities is
altogether unfounded. She herself has never in her years of
experience come across
such thing nor is there any literature that
supports such allegation with proof. She contended that a direct
tearing of the hymen
itself occurs when the hymen is injured. She
also has never come across a child who was born without a hymen.
Instead she has come
across those that are born with a solid or a
completely closed hymen referred to in literature as an imperforate
hymen, which is
some kind of a gynaecological problem. According to
Barnes what can cause a hymen to be absent, torn or injured in a girl
is a
direct injury to the hymen. She says the reason being that the
hymen is tucked inside the body and protected by the labia minora,

labia majora, subcutaneous tissue which makes up fat and muscle and
folded inwards.
[66]
In cases of small children younger than 13 who are raped over a
period of time by an adult male,
Barnes explained that physical
injuries in the sense of tears, bruises, lacerations and something
like that would be expected immediately
afterwards. Once the hymen is
torn it cannot be repaired. The tissue surrounding the hymen is a
mucosa similar to the ones in our
mouths. The injuries surrounding
the hymen may not be present at the time of examination. She said the
nature of the injury depends
on the mechanism of the injury, the
penetration comes in from behind then the posterior fourchette and
navicularis would be injured.
In respect of Oestrogen she said it
depends on the amount there is, the hymen becomes either very thin or
friable which means it
becomes thin like a tissue or it becomes
thicker. On the examination of a baby girl, because the child still
has got its mom's
oestrogen circulating in its body the hymen would
then be found swollen and that is normally found in the first year of
life as
the child grows older before they reach puberty the hymen
becomes very thin so it looks like a very fine tissue. Once the child

reaches puberty the Oestrogen levels go up and the tissue thickens.
[67]
The recovery rate or the healing of the
injuries sustained depends on the number of exposures there has been,
so first of all it
depends on the type of injury that is sustain ed
which would determine the extent of the injury, but if the same
tissue is injured
repetitively, for example, a woman who is sexually
active, every time she is sexually engaged she is not going to
sustain injuries
and that would be the case in a child as well. The
recovery time after an injury is probably weeks.
[68]
Barnes confirmed to having never seen or
examined the Complainants although she was briefed of the matter. She
also had not seen
the J88 containing the actual injuries until the
morning of her testimony. She was not informed about the
contradictions between
the two experts. The prosecutor however
explained to her that it is a case of child abuse where there is a
discrepancy in the testimony
provided with regard to these issues,
pertaining to injury to the genitalia and her opinion required in
that regard. The prosecutor
did not go into detail. The state
prosecutor never mentioned that it was about the hymen.
[69]
She was asked as to what causes a wide
angular round hymen or its widening. She indicated that as a child
grows older it increases
by a millimetre per year so the opening in a
1 year old child would be expected to be a millimetre wide in
diameter. In a child
that is 10 years old they will expect it to be
10 millimetre wide. She said she has seen a smaller opening in a
child of 10 with
an opening of 7 millimetres and that is not
considered pathological but the moment the diameter is larger than
they expect it to
be, it is considered problematic and they try and
find the cause. This has been documented and found in medical books.
If one has
a vaginal ride that is bigger that extends towards the
hymen, it can give an appearance of the hymen looking bigger but the
rest
of the hymen would be present. So the diameter of a hymen is
important in the case of an injured hymen. Once it is injured the
diameter is going to be large. He said it does not get wider by age.
Ask if it is possible for a child to have a wide opening, she
said
not possible in a small child to find an enlarged opening of for
example 13 millimetres in a three year old child . That is
not
normal. If it so try to see what has caused that widening.
[70]
Dr Barnes agreed that an inexperienced
observer may mistake a wide hymen and refer to it as having no hymen.
He emphasised that
there is no shred of research that indicates the
possibility of a phenomenon of being born without a hymen. She said
she has never
seen such research and in all the years that she has
examined children she has never seen an absent hymen in a child that
has not
been interfered with. It was put to her that there is a
possibility of research indicating the possibility of a girl being
born
without a hymen as confirmed by Dr Arbohr even though he pointed
out that it is possible but very uncommon or a remote extreme if
it
does occur.
[71]
She refuted that the hymen can be said
to be an external organ as according to her it is found in the
external area but folded inwards.
It is an external part of the
cervix, found deep within the body and exposed to the exterior where
it is easily injured. Barnes
also vehemently disagreed that it is
considered an external part because if you paddle a bicycle the hymen
comes into contact with
the bicycle and may rapture as part of the
exterior genitalia. She indicated that there is enough tissue around
the hymen to protect
that area and it is deeper in the body. She said
in examinations of a lot of children that have not been sexually
abused who are
very active and do all sorts of activities including
riding a bicycle she has not found injurie s to the hymen which if it
was
so they would be seeing it more frequently. She was not sure why
those experts would make such a conclusion. She thinks there can
be
an injury if a child that is riding a bicycle falls at the bars in
such a way that the
labia majora
labia minora
split apart then there
will be a direct injury that would cause a loss of hymnial tissue.
But not just by mere riding. If the child
is hit in between the legs
over the hymen area there is a possibility of that resulting in a
fractured or ruptured hymen. She admitted
that penetration is not the
only manner of tearing the hymen.
[72]
She highlighted that the most important
area that they focus on if there are allegations of rape is the
hymen. The overall examination
of the posterior fourchette and fossa
navicularise not important than hymen in rape allegations. Although
part and parcel of the
examination of the genitalia, so it is not
mentioned if nothing is found. She regards that to be a bad practice.
Also if notes
do not indicate that there was no injury the assumption
is that there was none as it is a small area.
[73]
Barnes was referred to one of the J88's
referral to a whitish fluid emanating from the examination of the
genitalia of the Complainants
as to what does that relate to. She
explained that it refers to a discharge that comes out of a vagina
the source of the infection
being the inside of the vagina or even
further out. Under normal circumstances a child would not have a
discharge at all. In rare
cases you may get a child under the
influence of its mother's oestrogen level who will produce a
discharge. She submitted that
they had seen extreme cases of babies
menstruating. A white discharge is not normally found and indicates
some form of infection,
possibly a sexually transmitted infection
especially in children. The cause and kind of the infection could be
various. For example
all females have a discharge, depending on the
level of puberty, that is, completely normal if it is clear and
depending on the
time of the cycle it can become more fluid or more
elastic in nature but still translucent.
[74]
In terms of a white discharge found in a
child she said each situation has to be assessed individually
depending on the history
of the child. If the child displays other
signs and symptoms of infection, as an examiner she may want to
investigate that discharge
further which would mean she would take a
swab and send it for what they call an MCNS which is Microscopy
Culture Sensitivity looking
specifically for sexually transmitted
diseases. Very often in small children it might be poor hygiene like
if they do not wipe
properly, wiping their bums from back to front
will contaminate that area with stool s and that can give a child
thrush. The call
is for the examiner to make a decision whether or
not actually a swab need to be done or treat the child just for
thrush. She said
the white fluid is also relevant to a rape case, if
found during examination of the genitalia. It is for the doctor to
send it
for further investigation. If the examiner has worked in the
STD clinic he will know how a discharge smells like when it is caused

by an STD or it is just caused by a thrush. She admitted that in a
rape case a swab should be done, although the examiner may decide
to
treat the child without a swab.
Repeated rape
[75]
In respect of injuries resulting from
repeated rape, Barnes pointed out that with repeated injuries the
entire hymen will eventually
be obliterated which would be possible
to pick up with visual examination. If a child was raped over a long
time consistently (3
years in this case) she confirmed that the hymen
would be destroyed to such an extent that it is not going to be
found. So th ere
would not be any hymen left. Alternatively remnants
may also be found depending on the type of injury that was inflicted.
Where
there was partial penetration, say for example, of a little
child, since full penetration might not be possible completely, if
done so the catastrophic injuries would be caused to the child , even
with incomplete penetration which constitutes rape as well.
The rape
of a small child over a period of time would have expected
devastating consequences leading to possible serious injuries
to the
genitalia, especially a young child of age four.
[76]
She said in an instance where an adult
has raped a small child of approximately 4 years old over a period of
3 years and especially
if the child has also been raped a day before
the examination, there is going to be some type of injury but before
it is a new
injury and you examine the child, the examiner will be
able to see that there was more trauma. If the hymen has been
traumatised
again and again even if it happened a day before, the
examiner might not pick it up. It was put to her that the child was
raped
from the age of two until the age of 4 constantly for a period
of three years (which is rather from the age 4 until she was 7),
so
can it be possible that the recent rape or rape will not be picked
up. She responded that she did not imply that the injuries
are
impossible at the beginning when the rape first started, as they were
talking about the period of time. When the rape started
the injuries
would have probably been a lot and more severe than they were after
three years. She further explained that if a child
has been
penetrated when she was two years old you may see something but by
the time she is four years old she is being groomed
to such an extent
that the child knows that this is what is coming then there is le ss
injurie s, maybe because the child becomes
less inclined to protect
herself so when the child is examined, the examiner may not find the
injuries that would have been found
when she was raped two years ago
as a two year old. An injury to a hymen permanent injury. An area
that has been repeatedly injured
eventually it is not going to show
fresh injurie s
like the one you
would get with an acute rape that was done for the first time.
[77]
It was put to her that the injuries referred to are those of the
whole vagina. Barnes repeated that
she thinks repetitive injuries to
that area may not result to the same extent of trauma than that it
would if the child was seen
after an initial injury. What has to be
looked at is the time period, the amount of healing and the degree of
rape that occurred
the
day before. Was it with a finger, or was it just fondling or
penetration . She said since there was a full penetration to a
1 year
old or two year old the penetration would be catastrophic. In a four
year old there would still be severe injuries but depending
on the
depth of the penetration. In full penetration one would expect the
child to present with very serious injuries if not it
might be
because there was partial penetration. She said if the child is
repeatedly penetrated over a period of three years there
would be
extensive injuries and that would be in keeping with what is probably
in the documents which suggest that the hymen is
partially
obliterated.
[78]
Barns considered the use of a
culpascope important during an examination of the genitalia of the
rape victims, especially in acute
rape, for collection of data but
she was of the opinion that if one is not available then the use of a
good normal light and a
camera in order to document whatever pictures
often is sufficient. With regard to the state's evidence about the
result of the
examination that there was no hymen present, she
reckoned a photographic correlation was a necessity during such
examination, however
it was also important to take cognisance of the
reality of South Africa that often there is no access to cameras
rather important
to treat the child than to turn them away to come
back when a photograph can be taken. She however did not deny the
benefit of
photographic material to the court in helping the process.
She however also believed that a doctor and a specially trained nurse

in forensics is trained well enough to be able to document findings
in the J88 that can be trusted. She agreed that if photos were
taken
they should have been presented in court to substantiate the findings
that the doctor has written down in the JBS. Barnes
indicated that
when Doctors speak of injuries of the hymen they are talking of
extreme situations.
[79]
Before the state closed its case, which
was immediately thereafter, it applied for the admissibility of the
Affidavits filed by
the Appellants in support of their bail
Application. The admission of the documents was not opposed and
therefore accepted in evidence.
[80]
A witness from the Department of Home Affairs subpoenaed by the court
appeared afterwards to
present the birth certificates of the two
Complainants A and S that indicated that they were born on 2 June
2004 and 13 July 1998,
respectively. It therefore confirms that when
the rape and molestations started in 2008, A was only 3 years old and
S was nearly
10 years old.
AD CONVICTION
[81]
The Appellants are challenging the court a quo' s reliance on the
testimony of the Complainants
in finding that their guilt has been
proven beyond reasonable doubt alleging that the court failed to
attach due weight to the
contradictory evidence of both children, and
in so doing paid lip service to t he cautionary rule that is
applicable to the evidence
of children. The court should have been
mindful to the fact that the children were the only witnesses that
gave direct evidence
as to the alleged offence of rape and assault.
It endeavoured to justify the various contradictions with reference
to the evidence
of Badenhorst, which is indicative of the extent of
the misdirect ion of fact it committed.
Analysis
[82]
It is certainly of general acceptance that prosecutorial proceedings
involving charges of sexual
misconduct that involves young children
require extra caution and attentiveness. It is therefore well to be
mindful at the outset
that, whilst there is no requirement that a
child's evidence must be corroborated, a cautionary appro ach may be
required. The
evidence, especially on a charge of this nature has to
be clear and satisfactory in every material respect to return a
guilty verdict;
see S
v J
1998 (2) SA 984
(SCA) at 100. A
weighty onus is put on the state and a broader responsibility on the
trial judicial officers to fully comprehend
the process and the
extent of responsibility that is conferred upon them to treat with
utmost care the child witness's evidence.
At the end of it all it
should be a fair trial.
[83]
In
Rex v
L
(DO) 18 CRR (2d) 257 sec (1993)
276-277 a fair trial in relation to the rules of evidence applicable
in child witnesses, was described
as follows:
"A fair trial must encompass
a recognition of society's interests. One must recognise that the
rules of evidence have not been
constitutionalised into unalterable
principles of fundamental justice. Neither should they be interpret
ed in a restrictive manner
which may essentially defeat the purpose
for seeking truth and justice. In the case at h and, in determination
of what is fair,
one must bear in mind the rights and capabilities
of children.
As Mclachlin J recognised in R v W®
[1992] 2 SCR
122
at 133.
It may be wrong
to apply adult tests for
credibility
to the evidence of children."
Wilson
J expressed a similar view in R v B (G) (1990]
2 SCR 30
at 54-55, in
reference to the Appeal Judge' s treatment of the child witness' s
evidence: "...
it seems to me that he was simply suggesting
that the Judiciary should take a common-sense approach when dealing
with the testimony
of young children and not impose the same exacting
standards on them as it does on adults.
In general, where an
adult is testifying as to events which occurred when she was a child,
her credibility should be assessed according
to criteria applicable
to her as an adult witness.
Yet with evidence pertaining to events
which occurred in childhood, the presence of inconsistencies,
particularly as to peripheral
matters such as time and location,
should be considered in the context of the age of the witness at the
time of the events to which
she is testifying.
(my emphasis)
[84]
The context of the app li cation of the
R v L
appro
ach in rape cases is enunciated in S
v
Vilakazi
2009 (1) SACR 552
(SCA) at
par [22] and [23] referred to by the Appellants in their heads of
argument and the learned magistrate in his decision,
as follows:
"the prosecution of rape
presents peculiar difficulties that always call for the greatest care
to be taken, and even more so
where the complainant is young.
From
prosecutors it calls for thoughtful preparation, patience and
sensitive presentation of all the available evidence, and meticulous

attention to detail. From judicial officers who try such cases it
calls for accurate understanding and careful analysis of all
the
evidence. For it is in the nature of such cases that the available
evidence is often scant
and many prosecutions fail for that
reason alone. In those circumstances each detail can be vitally
important...[22] ...The complainant'
s evidence was presented with
little care for completeness or accuracy." (my emphasis)
[85]     In
this matter the crimes that the Complainant s were testifying about
commenced when A was at a tender
age of 4 and
S 10.
It is
indescribable or hard to imagine how much anxiety they suffered for
having to testify about this horrific crim e being small
children,
especially when the perpetrators are their own parents. For the court
to appreciate that situation, the prosecution had
made the best
effort of presenting all the relevant evidence that could assist the
court in contextualising the Complainants' evidence
from the outlook
of their ages. It presented Badenhorst's testimony, which outlines
from the perspective of an expert how their
ages and circumstances
would affect the presentation and content of their testimony so that
the court is able to assess all the
evidence fairly. Therefore the
court a quo's reference to Badenhorst's evidence in understanding the
shortcomings in the Complainants
'evidence and during its analysis
was sensible and logical. The learned magistrate was very mindful of
its restrictive value as
far as verifying the credibility of the
Complainants testimony.
[86]     The
prosecution also presented the testimony of the examining doctor and
the forensic nurse that found
the physical evidence to be
corroborative of the Complainant's allegations of rape as well as
that of an independent medical expert
to assist the court to
establish if the conclusion that (the condition of the Complainants
sexual organs as revealed by the medical
examination due to the
alleged rape) the physical evidence consistent with the allegation of
rape, was reliable .
[87]     The
learned magistrate in evaluating the evidence was very cautious in
his approach, appreciating the
challenge posed by the age of the
Complainants and the fact that their testimony was the only direct
evidence that was before the
court that relate to the charges. He
carefully dealt with all the aspects of the Complainant 's evidence
addressing the contradictions,
inconsistencies and or shortcomings.
He indicated his understanding that the exercise of caution must not
be allowed to displace
the exercise of common sense. Also that it is
not meant to say that there should not be contradictions or
inconsistencies as the
test that needs to be fulfilled is prove of
the Appellants 'guilt beyond reasonable doubt and not beyond any
shadow of doubt as
stated by Malan JA in
R v Mlambo
1957 (4)
SA 727
(A) at 738A-B that:
"In my opinion, there is no
obligation upon the Crown to close every avenue of escape which may
be said to be open to an accused.
It is sufficient for the crown to
produce evidence by means of which such a high degree of probability
is raised that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime charged. He
must in other words, be morally certain of the guilt of the accused.
An accused's claim to the benefit of a doubt when it may be said
to exist must not be derived from speculation but must rest upon
a
reasonable
and solid foundation created either by positive
evidence or gathered from reasonable inferences which are not in
conflict with,
or outweighed by, the proved facts of the case. "
[88]
The learn ed magistrate indeed referred
and consulted a lot of authorities that are mentioned in his judgment
to affirm the manner
required to deal with the Complainant's evidence
in relation to the evidence
in toto ,
which came down to the same
conclusion that it is necessary to apply such caution and
attentiveness as the situation demands. Which
still , should not
amount to stringent considerations and over the top application of
the rules, that may stifle the rights and
capabilities of children to
be afforded justice. Instead this is a call to understand that a
child has suddenly found himself/
herself on a big stage of adults.
It would be a difficult and petrifying terrain for children to
traverse, especially very young
children. A child might therefore
find it difficult to pro cess the trial proceedings, or to understand
how to respond to cross
examination (they are only warned to tell the
truth) , finding a way of giving clear answers, knowing how to react
to confusing
questions, where they are unsure of the question asked
or of the answer sought . How to counter the examiner's statement or
conclusions
put to them. All this, exacerbated by the stress of the
likelihood of being punished or ridiculed, can be intimidating,
overwhelming
and exhausting and one does not need to be a
psychologists to appreciate this sensitivities. Hence in Rex v H
(T304/95)
13 CRNZ 648
at 653 it was held that:
"Evidence if given by an
adult may have had a deficiency so grave as to require rejection of
it as incredible... may in the
case of a child be explicable as due
to the limitation of a child's immaturity than lack of rationality."
[89]
In that situation to be sure, a
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside
such evidence as may be found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it support s
any of the evidence tendered; see S v Trainor
2003 (1) SASV (HHA) further that:
In considering whether the
evidence is reliable,
the quality of that evidence
must of
necessity be evaluated, as must corroborative evidence, if any.
Evidence, of course, must be evaluated against the onus
on any
particular issue or in respect of the case in its entirety." (my
emphasis)
[90]
The Complainants' .testimony was
essentially that they have seen each other being molested or raped by
FM and had both testified
to the presence of MN during these rapes
who did nothing to assist them. In addition if though it was not so
clear from S's testimony
if she had seen FM molesting or penetrating
her, A had also later testified that she also at one point saw FM on
top of S. At one
time FM was pulling and touching S's private parts.
Whilst S in turn has testified to having seen FM on top of A. It
became obvious
that it could not have been Ounooi as suggested during
cross examination or their grandfather as A had mentioned at one
stage during
her testimony. A contradiction from which the criticism
of the Complainants' evidence emanates. They have only stayed with
their
grandparents for a very short period and the identified rapes
were from 2008 continually and regularly until 2011. The grandfather

or Ounooi will have to have followed them to their last home and been
there until 2011 when the rapes were discovered.
[91]
All the same, Ounooi was alleged by S to
have been suggest ed to the Complainants by FM, and when A reported
about Ounooi making
her sore as recent as a few days before they were
taken for medical examination neither Ounooi nor their grandfather
was staying
at their home. So Ounooi could not have done this things
that A and S alleged were happening to them at night. When Serfontein
reported Ounooi to the police, FM reproached Serfontein for accusing
him of raping the children, in doing so FM identified himself
with
Ounooi, when he was expected to become angry, want to know and
protect the Complainants (his children) from Ounooi. His reaction
to
the news was very suspicious. Interestingly A had also reported that
Ounooi was a family member. FM has unfortunately refused
to testify
in rebuttal of the Complainants' evidence that directly implicates
him as well as the one that indicates a likelihood
of him being the
perpetrator. He chose to leave the evidence unchallenged. To which
his legal representation has conceded to have
been a gaffe.
[92]
The frequency of these incidents is also borne by S and Serfontein's
evidence about the number
of times that the Complainants had failed
to report to school which S has alleged was due to them having pains
in their private
parts whereupon they would skip school, and if they
do report to school Serfontein has testified to the unhygienic
condition of
A's clothes and overall wellbeing that raised suspicion
of sexual violation of the child.
[93]
Significantly, no other factual evidence was presented to the court
that can contradict the allegations
of the Complainant s that FM was
the perpetrator. S's testimony that in each of the incidents where
she would deeply fall asleep
and wake up the next day feeling sore on
her private parts, MN would have given her the pills, was also part
of the material evidence
that was not refuted by MN or in any way did
MN try to distance herself from the allegations. The allegations that
MN one time
was seen assisting FM to restrain A by tying her on the
bedpost or being there or around the house whilst FM was raping A was
also
left unchallenged.
[94]
In addition the Complainant s' allegation of chronic or repeated
sexual violation by FM was sturdily
corroborated by the physical
medical evidence that confirmed that A has been left without a hymen
and a bad discharge of unbearable
smell as attested to by Serfontein
whilst S was left with remnants of a hymen. The medical expert,
Barnes, testified to the credibility
of the conclusion that was
reached by the medical officers that the physical evidence was
consistent with repeated acts of sexual
violation over a long period
of time, amongst other things. Barnes confirmed that such repeated
acts would be catastrophic to a
small child (with devastating
effect). Her shocking exact words were that "with repeated
injuries resulting from repeated
penetration the entire hymen will
eventually be obliterated." "If a child was rap ed over a
long time consistently (3
years in this case) the hymen would be
destroyed to such an extent that it is not going to be found. So
there would not be any
hymen left."
[95]
The learned magistrate was therefore correct when taking into account
the total evidence of the
witnesses to find that there is clear and
reliable evidence that A and S were penetrated by FM with the
co-operation and assistance
of MN, who has also helped him to cover
up what was happening. Further that notwithstanding the
contradictions and inconsistencies
in the Complainants' testimony
their evidence was clear and satisfactory in all material respect s
when consider ed cumulatively
with all the other evidence and to,
without reasonable doubt, point to FM and MN being the perpetrators
of the alleged charges.
The Appellants allegation that the learned
magistrate endeavoured to justify the various contradict ions with
reference to the
evidence of Badenhorst has no merit. Such evidence
might prove consistency but does not carry any weight as far as
credibility
is concerned.
[96]
In respect of the allegations that
the court a quo usurped the
functions of an expert by referring to and applying its own research
to the facts of the case, whilst
that evidence was not given in court
to be tested by way of cross examination, thereby
misdirecting
itself by committing a legal error as to what the law required of the
court during the evaluation of the evidence.
[97]
In
5 v SM
2013 (2) SACR 111
(SCA) Erasmus AJA in the
evaluation of the evidence on consent in a child rape case, referred
to case law plus his own researched
literature including an
unpublished dissertation to illustrate his perspective. He also
recognised other courts' referral to such
research work. He had come
to the conclusion that he is entitled to do his own research. In
5
v Vilakazi
2009 (1) SACR 552
(SCA) Nugent JA in (28) referred to
literature on medical matter s to indicate his frustration on the
inadequacy of the medical
information that was presented to the court
which he was called to decide upon.
[98]
In
casu
the learned magistrate mentioned and consulted
articles, literature and authorities on "child witnesses in a
rape case"
that were referred to during the trial, mostly in the
course of Badenhorst' s testimony since she was testifying on the
subject.
It was whilst analysing and considering the unchallenged
appro aches proposed and discussed therein to safeguard the proper
and
fair assessment of the child witness evidence that the learned
magistrate further mentioned other writings and authorities which

emphasise and support the proposed app roaches. Such an occurrence is
not new or prohibited. What is prohibited is the use or reading
of
passages from the referred books or articles that contradicts the
views expressed by an expert witness that have not been put
to him in
cross examination; see
R v Mofokeng
1928 AD 132
;
5 v Harris
1965 (2) SA 340
(A). This will include the introduction of
literature that is contradictory that has not been mentioned in
evidence.
[99]
In
S v Mabuza
2018
(2) SACR 54
, the court on its own for the first time on appeal
referred to Muller's "in Judicial Officer and the Child Witness
(2002)
35 which emphasised that "context in which evidence is
given by a child witness is important." The literature was not

mentioned during trial or during submissions made on appeal. The
learned magistrate conduct did not amount to an irregularity.
[100]   The final
complaint is that the court misapplied the legal principle relating
to the Appellants' silence to the
peculiar facts of the case that was
before him when the two children were the only witnesses who gave
direct evidence as to all
the charges brought against the Appellants
by the State. All the other evidence being circumstantial , except
possible the evidence
relating to the injuries to their respective
hymens.
[101]   Where the state has prima
facie discharged the onus resting on it, failure to testify may be a
factor in deciding
upon guilt in appropriate circumstances, more so
if the Appellants could easily have refuted the prima facie case by
their evidence.
The fact that the direct evidence implicating the
Appellants is that of children cannot justify downplaying the effect
of the Appellants
failure to answer to it , and the fact that
together with the supportive circumstantial evidence and irrefutable
physical evidence,
cumulatively, make out a prima facie case which
leads to the case being proved beyond reasonable doubt ; see
S v
Letsoko
& Others
1964 (4) SA 768
(A);
S v Khamo
&
Others
1975 (1) SA 344
(D) .
[102]   The court a quo had concluded
by stating that "the accused's silence in the circumstances of
this case tends
to give more impetus to the undisputed testimony of
the state". Meaning that it weighs heavily against him. The
learned magistrate
was correct since not only is the evidence not
disputed, but prima facie points at the guilt of the Appellant s; see
S v Francis
1991 (1) SACR 1
98 (A).
[103]   The Appellants
in their heads have also repeatedly referred to the evidence of the
Complainants to be that of
a single witness which it is not, as
illustrated in the evidence dealing with what each Complainant also
observed happening to
the other. That is direct evidence certainly
not emanating from a single witness.
[104]
The mere criticism of the complainant's
evidence is not enough and does not affect the probity of their
evidence. The court must
however in the circumstances be convinced
beyond reasonable doubt of the guilt of the accused. Therefore on
appeal, the court considers
the trial court's finding of fact
inclusive of credibility findings from the point of view that unless
any misdirection can be
identified it is accepted that the trial
court's conclusions are correct; see s
v
Dlumayo
1948 (2) SACR 677
A 696-699;
Mhlumbi and Others
v
1991 (1) SACR 235
(A) 247 (g). In S
v
Manyane and Others
2008 (1) SACR 543
(SCA) the court held that:
"This court's powers to
interference on appeal with the findings of fact of a trial court are
limited. 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."
[105]
The Appellants have failed to justify a
finding of any demonstrable or material misdirection by the court a
quo.
AD
SENTENCE
[106]
The NDPP appeals under
s 310A
against
the effective sentence of 22 years imprisonment imposed on each of
the 2 counts of rape, alleging that the trial court
misdirected
itself and vitiated the exercise of its discretion when the statutory
prescribed minimum sentence of life imprisonment
on rape convictions
was not imposed. Alternatively, that
this
honourable court is at large to interfere with the sentence imposed
as the disparity between the sentence of the trial court
and the
sentence this court would have imposed is such that it can only be
described as "shocking" or "disturbingly

inappropriate.''
[107]
It is trite that sentencing is within
the trial court's province and the appeal court may only interfere
with such discretion if
it is not exercised properly and judiciously.
The trial court would have failed to exercise its discretion as
prescribed if it
committed an irregularity or misdirected it self, or
has imposed a sentence that is shockingly inappropriate or
out
of proportion to the magnitude of the offence
(see
S
v De Jager and Another
1965
(2) SA 616
(A) at 628H-6298) .
[108]   In terms of
s
310A
, the NDPP is required to show that the trial court exercised its
discretion in regard to sentence irregularly, unreasonably,
improperly
or in an unbalanced way, vitiating the exercise of the
discretion. A mere difference between the sentence imposed by the
trial
court and the sentence the court of appeal would have imposed
is not a sufficient ground for interference. The difference between

the two must be of such a nature and degree that it appears that the
trial court exercised its penal discretion unreasonably.
[109]
The Appellants as indicated were convicted of rape read with the
provisions of
s 51
(1) that compels the imposition of the prescribed
minimum sentence of life imprisonment on such a conviction unless
there are substantial
and compelling circumstances found, justifying
the deviation and the imposition of a lesser sentence. The prescribed
minimum sentences
provided in the Act also apply to accomplices; S
v
HB
2015 (1) SACR 502
(W).
[110]
In its judgment on sentence, the sentencing court is required to
consider the applicable minimum sentence legislation
and determine
the presence or absence of the substantial and compelling
circumstances. Such circumstances shall be entered on the
record of
proceedings. This would constitute the traditional approach of
weighing of aggravating circumstances against what is
considered to
be mitigating circumstances to determine whether the end result
constitute circumstances that are substantial and
compelling for the
imposition of a sentence other than the prescribed minimum sentence.
[111]
The courts are guided in their determination of an appropriate
sentence by the
Zinn
triad
(S v Zinn
1969 (2) SA 537
(A) that refers to the offender, the offence committed and the
interest of society being the factors to be considered in determining

an appropriate sentence. The court looks at the circumstances
surrounding the nature and extent or degree of each of these three

factors, keeping in mind the purpose for sentencing, that is
retribution, deterrence, prevention and rehabilitation. In
S v
Olivier
2010 (2) SASV178 (HHA) at par [8) the court stated that:
"It is trite that, during the
sentencing phase formalism takes a back seat and a more inquisitorial
approach, at collating
all relevant information, is adopted. The
object of the exercise is to place before the court as much
information as possible regarding
the perpetrator, the
circumstances of
the commission of
the offence,
and
the
victim's circumstances,
including the impact which the commission
of the offence had on the victim."
[112]   The NDPP alleges
that the learned magistrate erred when he found the fact that the
Appellant were first offenders
and were in custody for more than
three years awaiting trial coupled with his opinion that the rapes
were not of the worst kind
possible, to constitute substantial and
compelling circumstances justifying deviation from the prescribed
minimum sentence of life
imprisonment.
[113]
The Complainants are two little girls, A
and S. A was raped from the age of 4, within the sanctity of her home
by her own father,
continuously for a period of three years until the
rape was discovered by her caring and devoted teacher on the year she
started
elementary school at age 7, who noticed the withdrawn, aloof
and self-esteem lacking little A. For this little girl it was too
late as she by that time had already been raped to a point where her
hymen was obliterated.
[114]
S, A's older sister was also very young
when the sexual violations by FM started, being 10 years old at the
time. It was also throughout
the same period of 3 years and happening
under the watchful eye of her mother MN who made it possible for the
violations to take
place by giving her pills so that she can sleep
throughout the whole encounter. S was left with remnants of a hymen.
[115]
This shows the viciousness of the
offences perpetrated against these children by their own father. If
this is not one of the worst
kind of rapes the law advocates for the
harshest punishment to be meted, what is? The fact that the learned
magistrate disregarded
these real circumstances of the Complainant s
seeing them as not the worst, whilst giving emphasis to the period
the Appellants
spent awaiting trial which pails in significance, is
earth- shattering and troubling, and the sentence imposed
disturbingly inappropriate.
This even downplays the nature of the
crime the Appellants have committed, which is the rape of a 4 and 10
year year old child,
the most vulnerable of society. The fact of the
ages of the Complainants having been considered aggravating by the
legislature
to warrant life imprisonment, the most severe punishment
in our law.
[116]
The continuous rape is according to the legislature another
aggravating factor that seals life imprisonment sentence
as the
ultimate penalty. In
S v Kimberley
&
Another
2004
(2) SACR 38
(EC) it was held that item (a) (i) under 'Rape' in part 1
of Schedule 2 to Act 105 of 1997 contemplates a position where the
Accused
was convicted of rape in circumstances involving multiple
rapes and that on a grammatical interpretation of the provision,
viewed
in context within the Act, the paragraph envisaged three sets
of circumstances: where the victim was raped (i) more than once by

the accused; (ii) or more than once by the co­ perpetrator in
addition to rape by the accused; (iii) or more than once by any

accomplice in addition to the rape by the accused.
[117]   In casu, the
court was obliged to impose a life sentence as these circumstances of
multiple rapes were present
at the time of conviction in the sense
that they were included on the facts upon which the conviction was
based. Consequently where
factors of substance do not compel the
conclusion that the application of a prescribed sentence would be
unjust, that sentence
has to be imposed; see S
v Mokazi
&
Others
2002 (2) SACR 609
(T). In this matter we are dealing
with unrepentant serial rapist.
[118]   Furthermore, A
and S had to live a life of fear, and under these unpleasant and
unpalatable chronic conditions,
for three years not abating. They
were also bit ten, kicked and thrown with objects like shoes and
whatever else available to punish
them and when MN found out that A
had in fact told someone that it was Ounooi who was hurting them, the
two of them were also hit
by hand by both MN and FM even though it
was FM who told them to say it was Ounooi who was hurting them. They
just could not escape
the distressing situation and the continuous
hurt.
[119]   Serfontein had
eloquently testified on the physical and mental condition of A
amongst other children at school.
She painted a gloomy picture of a
child that was scared, withdrawn, lacking self- esteem, stripped of
all dignity and sent to school
in smelly stained clothes. No wonder
she was also withdrawn. The school tried to restore a little bit of
dignity that was left
by providing her with clean clothes.
[120]   In Du Tait, De
Jager, Paizes, Skeen and Van der Merwe's
Commentary on
Criminal
Procedure Act
on
p 28-18D-12 it is stated that the psychological
damage to a rape complainant (and especially one of tender years)
calls for special
consideration when assessing the appropriate
sentence. This seems to have escaped the court a quo that one of the
victims was of
a very tender age.
[121]   As highlighted
by the SCA in S
v SMM
2013
(2) SACR 292
(SCA) ([2010) ZASCA
56) at 297c, that the legislature considered rape one of the worst
crimes and ordained life imprisonment as
the sentence to be imposed.
The court stated that:
'Rape is undeniably a degrading,
humiliating and brutal invasion of a person's most intimate and
private space. The very act itself,
even absent any accompanying
violent assault inflicted by the perpetrator, is a violent and
traumatic infringement... free from
all forms of violence and not to
be treated in a cruel, inhumane or degrading way.'
[122]
The legislature also indicted the
circumstances that will not constitute substantial and compelling
circumstances justifying the
imposition of a lesser sentence. The
apparent lack of physical injuries to the complainant as provided in
S 51
(3) (Aa) (ii) was one of them. Zondi J in
S
v Uithaler
2015 (1) SACR 174
(WCC),
held that:
"the fact that the victim of
a sexual assault suffered no physical injury in the course of the
assault does not, in my view,
render the crime of rape less
reprehensible."
[123]
In
S v G
2004 (2) SACR 296
(W) Borchers J in
relation to the issue of absence of violence: stated that
"A physically immature
child...is no match for an adult man and little violence is needed to
achieve his purpose."
[124]
Furthermore the learned magistrate
downplayed the fact that the Appellants did not show any remorse to
what they have done, notwithstanding
that they have left the children
in a devastating situation where they will have to carry the stigma
of their past for the rest
of their lives. Their children now live
with strangers because their own parents used them as objects of
their own sexual gratification.
The Appellants failed to take the
court into confidence when they did not testify or respond to the
children 's allegation . Shad
sketched out in her notes the impact of
the trauma they suffered as a result of the rape incidents. She said
she again started
to worry, especially when she went to sleep she
thought a lot about these happenings. She experienced some changes
suffering from
stomach cramps, felt dirty and again started wetting
herself. She did not have friends, was very sensitive and quick to
cry.
A, her baby sister suffered from
nightmares and also the indignity of having to wet herself at night.
She was affected mentally, her whole
being "deurmekaar."
[125]
The learned magistrate had apparently
acknowledged the gravity of the crime perpetuated against such small
children by their own
father in the sanctity of their home and that
its physical and mental effect are bound to be long term when he
referred to the
statement in S
v
Abrahams
2002 (1) SACR 116
(SCA)
that:
"What is grievous about
incestuous rape is that it exploits and perverts the very bonds of
love and trust that the family relation
is meant to nurture.
Its
effects may linger for longer than in the case of extra-familial
rape."
(my emphasis)
[126]
Cameron A R explain ed that kind of rape
as follow s:
"Rape within the family
has its own peculiarly reprehensible features, none of which
subordinate it in the scale of abhorrence
to other rapes.
The
present case illustrates t hem with acute force. The rapist may think
that the home offers him a safe haven for his crime, with
an
accessible vic im , over whom he may feel (as t he accused did) he
can exercise a proprietary entitlement. Though not the case
here, the
family victim may moreover for reasons of loyalty or necessity feel
she must conceal the crime. A woman or young girl
may further
internalise the guilt or blame associated with the crime, with
lingeringly injurious effects.
This
is particularly so when the victim is the rapist's own daughter and
the more so when the daughter is of tender years."
(my
emphasis)
[127]
The learn ed magistrate abrogated his
duty to hold the best interest of the child paramount allowing it to
be trumped up by the
perpetrators' peripheral circumstances that of
being first offenders when the life sentence is designated for first
offenders any
way. The learn ed magistrate failed to appreciate the
gravity of the circumstances of the rapes of the Complainants and it
s devastating
long term impact that negates any weight the absence of
a previous conviction or perceived absence of physical injury and the
extent
of the awaiting trial period may supposedly carry,
individually or cumulatively. The cruelty of having perpetrated this
crime for
three years on their defenceless children is immeasurably
and frighteningly sickening. It is the most gruesome of rapes I have
ever come across so far. The Appellants deserve no less than the life
sentence.
[128]
The court a quo consequently erred in
finding that the three factors it referred to were substantial and
compelling circumstances
justifying the court's deviation from
imposing the minimum prescribed sentence of life imprisonment and
hence the sentence it imposed
shockingly and disturbingly
inappropriate.
[129]
Under the circumstances, I therefore
make the following order:
1.
The
Appellants appeal against conviction is dismissed.
2.
The
state's appeal against the sentence imposed in respect of each of the
2 convictions of rape is upheld.
3.
The
sentence imposed by the court a quo is set aside and substituted by
the following:
(a)
In
respect of each of the conviction for rape the Accused are sentenced
to imprisonment for life, the sentences to run concurrently.
(b)
The
sentences antedated to 12 March 2015.
KHUMALO
NV
JUDGE OF THE HIGH COURT
GAUTENG DIVISION; PRETORIA
I
concur
COLLIS C
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION; PRETORIA
For
the Appellants:
Wynand Prinsloo and Ven Eedem Inc
(On
conviction)
c/o W S Badenhorst
Attorneys
Respondent

Rietfontein , Pretoria
(On
sentence)

Ref : Mr Van Eedn/lmr/M34/15/J
For
the Respondent:
THE NDPP
(On
conviction)
KerkPlein 28
Appellant

PRETORIA
(On
conviction)
Ref: Adv F
W van der Merwe