About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 59
|
|
Mbedzi v S (CA&R 14/19) [2019] ZANCHC 59 (29 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
·
REPORTABLE: NO
·
CIRCULATE TO JUDGES: YES
·
CIRCULATE TO MAGISTRATES: NO
·
CIRCULATE TO REGIONAL
MEGISTRATES: NO
APPEAL NO: CA&R 14/19
Heard
on: 22 September 2019
Delivered on: 29 November 2019
In
the matter between:
GRANT
MBEDZI
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
CC Williams J
et
L
Vuma AJ
JUDGMENT
VUMA AJ
[1]
The appellant was convicted by the
regional court in Galeshewe on one count that he contravened the
provisions of section 3 of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act No. 32 of 2007 (rape), read with the
provisions of section 51(1)
of Act 105 of 1997 in that on or about
the 18th December 2015 he committed an act of sexual penetration with
"the complainant",
a 13 year old girl, by inserting his
finger into her vagina without her consent. The trial court imposed a
16 years direct imprisonment
sentence and the appellant was further
declared unfit to possess a firearm. He now appeals against both
conviction and sentence.
[2]
The appellant states his grounds of
appeal against his conviction as follows: The trial court erred in
the following respects:
1.
It
failed to take into account the material contradictions between the
evidence of the complainant and the version of the social
worker
contained in her report as was told to her by the complainant;
2.
It
failed to apply the cautionary rules applicable in respect of single
witnesses and child witnesses;
3.
In
finding that there was corroboration for the complainant's version in
the evidence of Dr Gradi;
4.
In
finding that the state proved beyond a reasonable doubt that the
appellant penetrated the complainant;
5.
In
rejecting the version of the appellant as not being reasonably
possibly true; and
6.
In
convicting the appellant of rape.
FACTS OF THE MATTER AS PER THE EVIDENCE
[3]
What is common cause in this matter is
that at the time of the alleged offence both the complainant and the
appellant were close
and knew each other since they were both staying
at the complainant's grandmother's house.
Ms
A[….] M[….]
testified
for the state and stated that she is complainant's mother and that
the alleged incident occurred when the complainant
was 13 years old.
On 18 December 2015 at about 22H00 whilst already asleep at her place
of abode, she was woken up by a knock at
her window and upon opening
the door found that it was the complainant who was crying. Upon
enquiring what the issue was, the complainant
told her that the
appellant had poked her in her vagina with his finger.
[4]
They then proceeded to the complainant's
grandmother's house whereat she confronted the appellant about the
alleged incident. He
denied ever doing anything to the complainant.
She together with the complainant then proceeded to the police
station to lay a
charge against the appellant and from there the
complainant was taken to a doctor for medical examination. The
complainant explained
to her that whilst lying on her back and
outside the house on the 'stoep' together with a certain baby and the
appellant, she felt
a finger inside her vagina which caused her pain.
[5]
Dr A[….] G[….]
also
testified for the state and stated that he is a specialist in family
medicine. At 03:00am on 9th December 2105 and whilst on
duty at the
Kimberley Hospital he did a clinical examination on the complainant
and completed a J88 form. He was informed that
the complainant was
touched by her uncle's friend in her private parts whilst sleeping.
She experienced pain, jumped up and ran
away. He saw some discharge
which he collected swabs from to be sent to a laboratory for
analysis. The hymen was still intact.
The doctor's conclusions are
that although he did not see any evidence of vaginal penetration, he
could however not exclude the
penetration on the external genitalia,
especially in light of the increased redness he saw at 5 o'clock. The
redness could however
have been caused either by the fluid/ discharge
in the complainant's vagina as a result of an infection or by trauma.
[6]
He further defined trauma as
'anything
that would pinch or apply, sets
a
definite amount of pressure to the
genitalia.......also, the redness could have been caused by trauma or
if somebody touches inappropriately'.
He
further testified that he neither saw any signs of injury on the
complainant's
labia majora.
However,
he minimalized the presence of infection as being the possible cause
of the redness, explaining that otherwise he would
have expected to
see a more generalized swelling. The swab analysis, though never
forthcoming, could have indicated if the discharge
was normal or due
to an infection.
[7]
A professional
report
completed by the social worker
was,
by agreement between the state and the defence, handed in and
received by the trial court as an exhibit to substantiate the
application by the state that the complainant testifies
via
an intermediary in terms of section
170A of Act 51 of 1977. In her report, the social worker states that
the complainant informed
her that the incident happened at night
whilst she was lying on her bed when the appellant put his finger on
her private parts,
at which instance she woke up and ran away.
[8]
The complainant
testified
that on the night in question the only people who were at her
grandmother's house at the relevant time was herself, her
uncle's one
year old child and the appellant. Whilst sleeping inside the house
and dressed in her cotton made jumpsuit the
appellant called her
to come sleep outside saying it was hot inside the house, which
suggestion she rebuffed but acted on later.
She then went outside and
found the appellant together with her uncle's one year old child
lying on a blanket outside. She joined
them and then fell asleep. At
the time she fell asleep her jumpsuit's top-part was lying by her
waist given the hot weather.
[9]
She was then awoken by a sharp pain she
felt in her vagina and found that it was the appellant's finger which
he had inserted in
her vagina. I should mention at this stage that
when the prosecutor asked her during examination-in-chief how she
knew that it
was the appellant's finger which pricked her, the
complainant answered that she could not distinguish, but that it was
something
big and when she woke up the appellant was moving his hand
away from her.
[10]
At that time the appellant was lying next to her and she quickly got
up and ran outside the yard
to seek for help from a neighbour whom
she found flat drunk. She then proceeded to her mother's place of
abode and told her mother
that the appellant had pricked her with his
finger on her vagina.
[11]
When confronted with the version she
allegedly gave to the social worker that at the time of the incident
she was lying on her bed,
she denied ever having a conversation with
the social worker, disavowing such a version. She also denied the
appellant's version
as was put to her.
[12]
The appellant
testified
in his own defence and called one witness. He stated that on the day
of the incident he was sitting outside the house
with his friends
A[….] and B[….]listening to music and having a few
drinks. The complainant was inside the house
busy playing radio.
Whilst they were busy talking outside the complainant came running
out of the house, shouting and screaming.
Thinking there could be
someone inside the house, the appellant went inside the house to
check and found no one. Shortly thereafter
the complainant's mother
arrived with her and shouted at him that she was going to the police
and that he raped her child. He denied
that he did that. He stated
that he and the complainant had a normal relationship and there was
no hard feelings between them.
As a possible motive for the
complainant falsely implicating him in the alleged offence, the
appellant explained that money had
allegedly disappeared from the
grandmother's house that night which the complainant was suspected of
stealing and that she possibly
wanted to deflect attention from the
theft by accusing him of molesting her.
[13]
Mr M[….] G[….]
also
testified in the appellant's defence that he was also staying at the
same house as both the complainant and the appellant then
but that at
the relevant time of the alleged incident he was not present at the
shared home, having left his child with the appellant
who was on the
stoep with a person by the name A[….], who have since passed.
At that time the complainant was inside the
house busy watching
television. When he returned home with his mother, the appellant' and
A[….]were standing were standing
outside and he was informed
that the complainant had run out of the house screaming. Mr G[….]
had no knowledge of Big Joe
being present at the house during the
course of the night.
SUBMISSIONS BY THE STATE
[14]
It was submitted that the appellant was
the perpetrator and that the redness inside the complainant's vagina
supports her version
that there was penetration which went past the
labia majora
although
it did not result in a full-on hymeneal penetration. It was further
submitted that even the slightest penetration constitutes
rape and
that that is what has occurred
in
casu.
SUBMISSIONS
BY THE DEFENCE
[15]
It was submitted that from the Doctor's
testimony, there was no sign of vaginal penetration and that at
worst, the appellant's actions
were nothing more than to touch the
external part of the complainant's genitalia, which would then
constitute an offence of sexual
assault and not rape.
LEGAL PRINCIPLES
[16]
Section 3 of the Sexual Offences Act
defines rape as "an act of sexual penetration, without the
consent of ("the complainant").
In terms of section 1,
'sexual penetration' is defined to include under subparagraph (a)
thereof
"any act which causes
penetration to any extent whatsoever by the genital organs of one
person into or beyond the genital organs
of.......
another.......and (b) any part of the
body of any person or, any object, including any part of the
body....into or beyond the genital
organs....of another person."
[17]
In the matter of
S
v Mahlangu and Another 2011(2) SACR 164 (SCA),
the
Court held the following at paragraph 21:
'[21]
Section 208
of the
Criminal
Procedure Act 51 of 1977
provides that:
'An accused may be convicted of any offence
on the single evidence of any competent witness.'
The court can base its finding on the
evidence of a single witness, as long as such evidence is
substantially satisfactory in every
material respect, or if there is
corroboration.
'
[18]
In
S
v Sauls and Others
1981 (3) SA 172
(A)
at 180 E-H Diemont JA said
'there is no rule of thumb test or
formula to apply when it comes to a consideration the credibility of
the single witness'.
ANALYSIS
[19]
The appellant alleges that the trial
court failed to take into account the material contradictions between
the evidence of the complainant
and the version of the social worker
contained in the latter's report as was told to her by the
complainant. I am of the view that
since the said report was handed
in purely as an exhibit for purposes of an intermediary to be used
without the testimony under
oath of the said social worker, this
court cannot
mero motu
unveil
any issue not related to the purpose for which it was intended.
Accordingly, this ground cannot succeed.
[20]
With regard to the trial court's alleged
failure to apply the cautionary rules applicable in respect of single
witnesses and child
witnesses as being one of the appellant's grounds
of appeal, counsel for the appellant did not seriously challenge the
credibility
findings against the appellant. Neither did he attempt to
diminish the weight that could be attached to the complainant's
testimony
on the grounds that she was a single child witness.
[21]
Be that as it may, It is my view that
the trial court correctly considered the applicable legal principles
relating to the evidence
of a young child and single witness. The
trial court properly cautioned itself regarding the assessment of the
evidence of a young
child in weighing her evidence. The complainant
had provided consistent details of the molestation without any
contradictions.
Furthermore, her evidence provided a clear account of
the circumstances under which the molestation occurred, including the
place
and the occasion. I will however revert to a further aspect of
the cautionary rule later herein.
[22]
With regard to the trial court finding the version of the appellant
not being reasonably possibly true,
I am satisfied that the version
of the complainant as juxtaposed with the doctor's evidence gives
credence to her version of events.
The improbability in respect of
the appellant's version arises from,
inter alia,
his failure
to, without any explanation, to call Big Joe as a witness in
circumstances where, on his version, Big Joe was present
during the
time the complainant alleges to have been raped. The only reasonable
inference to be made from the failure to call Big
Joe is that he
would not have supported the appellant's version of events. The
motive he advances as to why the complainant would
implicate him was
also correctly rejected by the trial court. What cannot be gainsaid
is that the appellant and the complainant
at the time of this
incident were staying in the same house; they were known to each
other way before this incident and that they
had a very good
uncle-niece relationship.
[23]
As stated above, the complainant has
been consistent with her version, from the time she went to her
mother's, to the doctor's and
also in court. This court is satisfied
that from the above, it cannot be said that the motive allegation is
sustainable. It is
therefore my finding that the alleged motive is
nothing more than a pipedream and thus the appellant's version cannot
be reasonably
possibly true.
[24]
Taking into account all of the above, I
am satisfied that the trial court correctly found that the appellant
violated the complainant.
The version by the appellant that at the
time he heard the complainant's screams she was inside the house is
highly improbable.
Of course he could not have found anyone inside
the house as he had stated since it was just the three of them at the
time.
[25]
The only issue left to consider is
whether the offence committed is one of rape or sexual assault, the
appellant contends that the
magistrate erred in finding on the
evidence that there was in fact vaginal penetration. What flows from
the complainant's evidence
is that the appellant pricked her inside
her vagina with his finger. The doctor's· evidence is that he
found no evidence
of vaginal penetration but signs of trauma which
could have been caused by touching the complainant's
labia
majora,
leading to the redness he
saw at the 5 o'clock position. It was thus submitted on behalf of the
appellant that on the evidence,
a conviction on sexual assault should
have been returned, if anything, and not one of rape.
[26]
From the evidence by the doctor and the
complainant, it cannot be said that the only reasonable conclusion
which one can arrive
at is that the offence of rape was committed
against the complainant. What the trial court clearly did not
consider is the suggestibility
of young children, which can be seen
in the evidence of the complainant. On her mother's version, the
complainant told her that
the appellant had poked her in the vagina
with his finger. She told the doctor that the appellant had touched
her in her private
parts. During examination-in-chief, she seems to
have assumed the appellant used his finger since she was asleep at
the time and
only woke up to see him moving his hand away. Should one
then have regard to the doctor's inconclusive evidence regarding
penetration,
trauma or infection being the cause of the redness to
the genitals of the complainant, it cannot be safe to uphold a
conviction
of rape.
[27]
Despite the state's contention that,
however slight, a genital penetration constitutes rape since it is
not a question of degrees,
this court is therefore satisfied that the
trial court erred in convicting the appellant of rape, which
conviction therefore stands
to be set aside. A conviction on sexual
assault would in my view be competent in light of the evidence.
AD
SENTENCE
[28]
It follows in view of my finding that
the sentence imposed needs to be reconsidered.
[29]
The personal circumstances of the
appellant are as follows:
1.
He
was 32 years old at the time of the incident and currently 35 years.
2.
He
is single father of two children aged 16 years and 18 years whom he
financially supports.
3.
He
has a degree in Mathematics and Computer Science and also obtained a
Master's degree therein.
4.
At
the time of the sentencing proceedings, he was self-employed with a
monthly income of between R4000-00 and R20 000-00.
[30]
The mitigating factors are the
following:
1.
Before
the case was provisionally removed from the roll, he had spent six
months in custody.
2.
He
is a first offender.
3.
He
was under the influence of alcohol at the time of the commission of
the offence.
[31]
The aggravating factors against the
appellant is the youthfulness of the complainant, the trust between
the complainant and the
appellant which the latter abused and took
advantage of and the appellant's lack of remorse by persisting with
his innocence. The
seriousness of the offence and the community's
interest is very important.
[32]
Despite the sentence in respect sexual
assault being lesser as compared to one of rape, it must still
emphasised that it is a very
serious offence which totally degrades
its victim and the courts frown upon such utter infringement of any
person's bodily integrity.
[33]
In the result I make the following
order:
1.
The appeal in respect of both the
conviction and the sentence succeeds.
2.
The conviction of rape is set aside and
substituted with the following:
"The accused is found guilty of sexual
assault."
3.
The sentence imposed is set aside and
replaced with the following:
"The accused is sentenced to 3 (three)
years imprisonment".
4.
The sentence is antedated to 12 October
2018.
Livhuwani
Vuma
Acting
Judge of the High Court
Northern
Cape High Court Division, Kimberley
I
agree
CC
Williams
Judge
of the High Court
Northern
Cape High Court Division, Kimberley
Heard
on: 9 September 2019
Judgment
delivered on: 29 November 2019
Appearances:
For
appellant: Adv I.J. Nel
Instructed
by: Rick lshmail Attorneys
For
Respondent: Adv N. Mxabo
Office
of the OPP, Kimberley