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[2019] ZAECBHC 15
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S v Mdashe (CC34/18) [2019] ZAECBHC 15 (24 June 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
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO. CC34/18
In
the matter of:
THE
STATE
versus
VUYANI
MDASHE
Accused
JUDGMENT
STRETCH
J.:
1.
The 44 year old accused has been charged with raping and sexually
violating three
female children at Keiskammahoek on 29 January 2017.
He pleaded not guilty and reserved the basis of his defence.
2.
All three children testified through a CCTV feed with the assistance
of a qualified
intermediary. They all understood the difference
between right and wrong, and comfortably distinguished between the
truth and falsehood.
They had minor difficulties with understanding
the full import of the consequences of taking the oath, and were
admonished to speak
the truth.
The
complainants
3.
I[…] M[…] is 12 years old, having been born on 19
August 2006.
She was ten when the offences were committed. L[…]
G[..] was born on 13 August 2007 and is 11. At the time of the
offences
she was nine. L[…] M[…] is 11 years old having
been born on 29 January 2008. The day on which the offences were
committed
was her ninth birthday.
The
Sunday
4.
It is
common cause that on the afternoon of Sunday, 29 January 2007, the
three girls were playing outside L[…]’s house
when the
accused approached.
[1]
According
to the testimony of the girls, he invited them to join him to harvest
traditional medicines in the forest. They accepted
the invitation and
walked with him towards the forest. He was carrying an axe. According
to I[…] and L[…] he also
had a plastic bag.
5.
When they reached the thicket he instructed them to remove their
panties. They
refused. According to I[…] he threatened to
suffocate them with the plastic bag. This frightened them.
They
obeyed.
L[…]
6.
He took hold of L[…] and instructed her to lift her legs. When
she resisted
he produced the axe and threatened to chop them.
Thereafter he removed his trousers. According to L[…] he said
that he did
not intend raping her vaginally. Instead, he
instructed her to part her thighs and rubbed his penis between her
thighs, but
ended up touching her “private parts” in any
event which prompted her to close her thighs. She tried in vain to
move
away from him and was grabbing hold of the vegetation around
her. At this stage she and the accused were facing each other.
7.
According
to L[…] he then instructed her to turn around and bend over.
He inserted his penis into her anus and raped her
from behind.
[2]
She said that she cried and ran to a rock. She climbed onto the rock
and shouted for help but no one responded. The accused instructed
her
to keep quiet. She gathered her underwear, stepped aside and dressed
herself.
L[…]
8.
Thereafter
he grabbed hold of L[…] and repeated his actions. She also
obeyed after having been threatened with being suffocated
and chopped
up. According to L[…] the accused sexually violated her
by inserting his penis between her thighs. Thereafter
he raped
her anally with his penis.
[3]
9.
She lifted one of her legs and placed it on his chest. He
inserted his
penis into her vagina. She too, cried, but the
accused told her to keep quiet.
I[…]
10.
He then called I[…] and instructed her too, to lift up her
legs. She tried to lift one
of her legs as he was threatening to kill
her by chopping her up with the axe. When she didn’t manage to
lift her leg, he
did so for her and placed it on his chest. He
inserted his penis into her anus and raped her. It was painful. She
too cried, and
tried to escape but he held her tightly and put his
hand over her mouth. When he had finished she proceeded to dress
herself.
11.
When he had
finished with all three of them, he picked up his axe and plunged it
into the ground narrowly missing L[…]’s
foot.
[4]
He warned them not to report what had happened, as he would kill them
by chopping them up.
12.
They made their way back home. On the way they met a local man
(referred to as Sol Peter) and
asked him to pick some prickly pears
for them which they ate. They were still anxious about the
accused’s threats so
they did not tell the man what had just
happened to them.
13.
They
returned to their respective homes where they also did not report
what had transpired.
[5]
According to I[…] her mom enquired where she had been and why
she was so dirty. She reported that she had been playing at
L[..]’s
home and that she was dirty from the prickly pears which had been
picked for them. She refused supper and went to
bed.
14.
L[…] said that she too went home with some prickly pears, and
gave one to her mom.
The
Monday
15.
According to I[…], they discussed amongst themselves what had
transpired when they were
walking home from school the next day. In
particular they spoke about reporting this to their families at home.
As expressed by
I[…] in no uncertain terms, they decided to
report, despite having been threatened because “It was pissing
us off”.
16.
She said that while they were conversing, one “Chuma”
and one “Nqali”
were walking directly behind them. Chuma
told them that he saw the accused raping them.
17.
This was when Abongile, another colleague from school, arrived
and enquired what they were
discussing. It was then that they told
someone for the first time that the accused had raped them. Abongile,
who independently
confirmed this when he testified, told I[…]
that he was going to go with her to report this to her parents, which
they duly
did.
18.
L[…] and L[…] were also questioned. The girls confirmed
I[…]’s version
that the accused had raped all three of
them the day before.
19.
The evidence regarding what transpired after school, which led to the
questioning of the girls,
was independently corroborated and is
consistent with the evidence of I[…]’s parents who both
testified. In particular
the independent evidence of these two
parents regarding what the girls had reported to them, is entirely
consistent with what the
complainants themselves told this court.
20.
After all three girls had been questioned, everyone proceeded to the
accused’s home to satisfy
themselves that the children were
indeed speaking the truth, particularly in that the accused himself,
was also a father and a
well-known person in the area.
The
accused’s home
21.
Amongst the people who then proceeded to the accused’s home
were: the three complainants,
both I[…]’s parents and
L[…]’s grandmother who, according to her evidence, had
by then also been put
into the picture by I[…]’s father.
22.
When they arrived at the accused’s home his mother and
his sister were present but
he was at work. They informed the
accused’s mother of the purpose of their visit and what had
happened to the girls.
23.
The accused was summoned. He arrived. He was challenged by his mother
about what the girls had
reported. He admitted that he had had sexual
intercourse with the girls, but explained that they had asked for it,
and that he
had reluctantly complied. Indeed, when L[…]’s
grandmother testified, she explained the accused’s reaction in
the following terms:
‘
The accused’s
mother said to the accused: “Here are the children. They say
you raped them”. The accused said:
“Why are they telling
lies?” He said that the children had called him and had said:
“Malume please give us”.
According to the accused he then
said to the children: “No, you are still very tender.”
They nevertheless followed
him. They arrived there and then that one
of mine [presumably L[…]] was the first one to say: “Do
it to us! Let me
be the first one Malume!” So the accused said
he reluctantly did it to them…..He said “I reluctantly
did it
on the thighs and at the back. They asked me to do it.’”
24.
She added
that when the accused admitted this to his mother in the presence of
a full house, he did so of his own accord. He was
not threatened with
force or torture.
[6]
25.
L[…]’s grandmother testified that before this incident
the girls had always had a
good relationship with the accused. She
repeatedly said: “The children rely on him. They know
him. They rely on him.
They know him.”
26.
According to the witnesses, I[…]’s father said that now
that he had admitted rape,
the law would take its course, whereupon
he forthwith summoned the police. The police arrived and likewise
questioned the accused
who made a similar report to them.
27.
Thereafter they were all escorted away by the police. The accused
remained with the police. The
complainants were taken, with their
birth certificates, where they were medically examined at SS Gida
Hospital by Dr Mlanduli.
The
medical evidence
28.
Dr Mlanduli examined all three girls that evening and reported her
findings in writing. When she
testified, she confirmed the facts,
findings and opinions which she had recorded in writing and
supplemented them when called upon
to do so.
I[..]’s
examination
29.
Her examination form describes I[…] as a ten year old female
patient who told the doctor
that she had been sexually assaulted by
someone she knew. She told the doctor that the perpetrator forced her
to undress. He said
that she must lie on her side whereafter he
penetrated her buttocks.
30.
The doctor did not observe any vaginal injuries except for redness of
the vaginal mucosa (a pink
soft mucous membrane). She attributed the
redness to recent trauma as a traumatised mucosa normally heals
within 72 hours. She
conducted an anal examination and made the
following clinical findings: The skin surrounding the orifice was
dirty and the erythema
was red. The orifice itself presented with
twitchiness/winking and its rim was swollen. She digitally examined
the anus and found
poor laxity with a weak sphincter grip. She
corroborated Inam’s report to her and repeated in her evidence
that the child
had been anally penetrated.
L[…]’
examination
31.
L[…] likewise told the doctor that she had been sexually
assaulted by someone she knew.
She said that the perpetrator had
lured the three of them into the bush. Her underwear was removed. He
inserted his penis between
her legs. He then “went to the front
and back” and inserted his penis into her anal orifice.
32.
The
child presented with a white vaginal discharge, redness of the mucosa
and a visible tear in the anus. The hymen was not
visible. There was
no winking of the orifice of the anus.
[7]
The
child was emotionally traumatised.
33.
The doctor was of the opinion that Lindo had been penetrated
vaginally. She was unable to exclude
anal penetration but indicated
that the clinical signs pointed more towards vaginal penetration.
L[…]’s
examination
34. L[…]
likewise explained to the doctor that she had been sexually assaulted
by a person known
to her. The perpetrator had instructed her to
remove her underwear. Thereafter he placed his penis (“his
urinating part”)
between her buttocks but did not penetrate the
anal orifice.
35.
The skin
surrounding the anal orifice was cracked and there was no winking of
the orifice itself. The increased friability of the
skin of the anus
was suggestive of some form of sexual assault.
[8]
The
accused
36.
The accused testified in his defence. He confirmed that he and
the complainants were known
to each other, and that L[…] was
in fact his neighbour. He said that on the afternoon of 29 January
2007 he saw the girls
playing under a tree when he went out to dig
for/harvest medicinal bark for the treatment of cattle. He confirmed
that he was carrying
an axe. He said however, that he did not speak
to the girls but to another neighbour who wanted to know where he was
going.
37.
He said that upon his return just before sunset, he saw the girls
with Sol Peter at the place
where the prickly pear trees were. Sol
saw him as well. Those were the only two occasions on which he saw
the girls that day. He
did not rape them, nor did he suggest to
anyone that they had asked to have sex.
38.
He confirmed that the complainants were his neighbours and that
before this incident he had enjoyed
good relationships with all of
them and with their families. He suggested that they may have
sustained the injuries or the conditions
they had presented with from
the prickly pears.
39.
He said that the following day he was summoned from work and the
girls accused him of having raped
them. His mother was very hurt when
she heard this. She said that he should clothe himself in something
warm as he was going to
prison.
40.
I digress to add that according to the prosecution witnesses, the
accused’s mother responded
in this fashion after the accused
had confessed to her that he had raped the children, but at their
request.
Evaluation
41.
There
is no statutory requirement in our law that a child’s evidence
must be corroborated. However, it has been accepted
that the evidence
of young children should be treated with caution owing to the dangers
inherent in such evidence.
[9]
I
fully appreciate and have warned myself of the danger that children
are sometimes open to imaginativeness and suggestibility.
I will deal
with this more fully in due course.
42.
My
primary concern however, is whether the evidence of these three girls
is trustworthy.
[10]
With
regard to the facts of this case, I must in particular satisfy myself
that these children are sincere in the sense that
they have evinced a
consciousness to speak the truth and have in fact done so.
43.
As for
suggestibility, where the nature of the evidence is of a simple kind
and the circumstances are such as to practically exclude
the risk
arising from suggestibility, then there are sufficient indicia of
trustworthiness to dispense with corroboration.
[11]
44.
The complainants are not single witnesses. They allege that they were
raped together. This is
not in dispute and I accept their evidence in
this regard. Neither is it in dispute that they were the victims of
sexual offences.
I accept that they were. Not only have they
corroborated each other in this regard, but the independent medical
evidence obtained
the day after the morbid events, bears this out.
45.
Nor can the reliability of the identification of the accused be an
issue. The accused is known
to them and they to him.
46.
The only
issue which has been raised by the defence for my consideration is
whether these children may have falsely implicated the
accused,
because they are protecting the real perpetrator with whom they were
engaged in a type of sexual experimentation, it would
seem. It goes
without saying that if such a danger exists, it would be relatively
easy for the complainants to substitute the real
culprit with the
accused, and then simply ascribe the culprit’s conduct to the
accused. Such a complainant indeed has a deceptive
facility for
convincing testimony. Because such a person actually participates in
the event described, there exists a danger that
a deft substitution
of the accused for the real subject would be difficult to detect.
[12]
I will address this proposition in due course.
47.
Over and above this suggestion, the accused’s representative
has pointed out that there
are some inconsistencies in their
evidence. Where this takes the defence case I don’t really
know, but I will touch on them
in any event.
48.
The main criticisms in this regard are:
a.
I[…] described how L[…] lifted up one of her legs and
placed it on the accused’s
chest, and that thereafter, she was
also instructed to lift up her legs, and that eventually the accused
lifted one of her legs
himself. This evidence is not replicated by
L[…] and L[…].
b.
L[…] described how she had mounted a nearby rock and had cried
for help. The other two did not
mention this. Indeed, L[…]
denied that L[…] shouted for help.
c.
L[…] also admitted that she had told the police that I[…]
and L[…] had opened
her buttocks but that the accused could
still not insert his penis in her anus. I[…] was not asked
about this. L[…]
said she could not remember.
49.
It is so that the three complainants did not give their evidence as
if by rote, the one corroborating
the minutest detail described by
the other or others. I do not find this strange. Nor do these
inconsistencies detract from their
honesty and their reliability
(when they say that they were the victims of sexual assaults), or
from the accuracy of their description
of their experience as a
whole.
50.
These singled-out differences in the way they have described their
combined experience has no
bearing on the defence case which suggests
that they may be shielding the real culprit. The temptation to shield
a real culprit
is also not something which is unique to the child
witness.
51.
Nor is it a valid reason for approaching the child’s evidence
with caution. It is, in my
view to be expected that children who were
between nine and ten at the time of the morbid incident, and who
testify in regard thereto
two and a half years later, are likely, in
the absence of deliberate collusion, not to dovetail their evidence
in all respects.
This is particularly so where the young child is
called upon to recall a painful experience which falls wholly outside
of that
child’s frame of reference.
52.
I turn now to deal with the suggestion that the children may have
been “experimenting”
with someone else. The defence
appears to be relying rather heavily on the following in support of
this suggestion: According to
I[..], C[…] (who is about 15
years old, attended school with them and was not called as a witness
by either party despite
his availability and the availability of an
affidavit deposed to by him), had told them that he had “detected”
what
had happened the previous day, and said that “they”
had seen what had happened when the accused was raping them. C[…]
had said that he saw the accused raping them when he was “nearer
to that rock that has branches”. According to
L[…],
she knew that C[…] had realised that something was wrong when
he referred to them as “these children”
at school.
53.
It is contended on the accused’s behalf that the prosecution
ought to have called C[…]
to testify if it is indeed so that
he had witnessed the accused raping the girls. Mr Willemse, for the
prosecution, has given me
the assurance that both he and the defence
are in possession of an affidavit deposed to be C[…], that his
whereabouts are
known, and that he can take the matter no further.
54.
I do not believe that the election by the prosecution not to call a
witness should, in these particular
circumstances, detract from the
reliability of the complainants. By the same token, if C[…]
had stated on oath that he had
witnessed the girls involved in age
inappropriate shenanigans with someone other than the accused, I
would have expected the accused
to have lead this evidence in
rebuttal or at the very least to have produced the affidavit
attesting to this as part of the defence
case.
55.
There is, in any event, no basis for the suggestion that the children
were sexually violated by
someone other than the accused –
someone whose identity the children were bent on protecting at the
risk of implicating an
innocent man. I say so for the following
reasons: Whilst many strange things are possible, they are not
probable when viewed
in the contextual setting of the matter before
me. It is common cause that the accused was both near and dear
to the complainants.
He was perceived as a father figure, a
maternal uncle, and an old man and neighbour who could be trusted and
relied upon.
Indeed, L[…] and her grandmother used
to baby-sit the accused’s niece.
56.
If indeed, the complainants were sexually violated by someone
other than the accused, it
is highly improbable that they would, on
the spur of the moment, have resorted to implicating the accused who
had been both near
and dear to at least two of the three
complainants, one of them having arrived in the area shortly before
the incident. Indeed,
it would have been much easier and convenient
for them to have blamed a stranger or a fictitious person for that
matter.
57.
I reject any suggestion made on the accused’s behalf that
the complainants had voluntarily
experimented in this type of conduct
and/or are now protecting the perpetrator at the expense of the
accused.
58.
I am satisfied that all the complainants truthfully relayed to this
court, to the very best of
their abilities, what they experienced and
the extent thereof. They described what had happened to them in a
forthright and logical
fashion. Their joint demeanour was brave and
uncompromising.
59.
Indeed, I[..]’s evidence that they decided to tell the adults
what the accused did to them,
because it was “pissing”
them off, has a curious ring of truth about it. I am satisfied too,
that what L[..] overheard
being discussed after school, was not a
secret conspiracy to falsely implicate the accused. Rather, it was
three young girls who
were finally establishing that they could rely
on each other for support and comfort in order to expose the
accused’s reprehensible
conduct.
60.
As for the accused, he did not impress me as a witness. He was vague
and elusive throughout his
testimony. When he was confronted with the
evidence of the prosecution witnesses - that he had admitted to his
mother that he had
raped the children - he made a weak attempt to
improvise in the witness box and spoke utter nonsense. He said that
his mother had
said that she had spoken to him for a long time about
staying out late (as there were break-ins where they lived) and that
she
had said that he was going to jail for staying out late, and not
because he had admitted to having sexually violated the girls.
61.
Not only was his conduct cowardly and irresponsible when he was
caught out, but he has sunken
into what can only be described as a
blatant denial which cannot be supported from whichever angle it is
viewed.
62.
The evidence against the accused, that he took advantage of these
young children on the Sunday
in question and subjected them to
demeaning and disgusting sexual abuse, is overwhelming.
The
charges
63.
I now turn to the specific charges. I am satisfied, that as far as
I[…] is concerned, her
own evidence, insofar as it has been
consistent and insofar as it is corroborated materially by the
medical evidence, makes for
proof beyond a reasonable doubt that she
was raped by the accused. On the other hand, there is insufficient
evidence to support
a contention that the accused also sexually
assaulted her by rubbing his penis between her thighs.
64.
L[…]’s evidence, her consistent explanation and the
medical evidence is clear. She
was both raped and sexually assaulted
by the accused.
65.
As far as L[…] is concerned, her testimony, her consistent
report and the medical evidence
confirms that she was indeed sexually
assaulted by the accused when he, inter alia, rubbed his penis
between her thighs. However,
insofar as she appears to have told the
doctor that he placed his penis between her buttocks but did not
penetrate her, the accused
is entitled to the benefit of the doubt
and is guilty at best, in this respect, of attempted rape.
Order
I
make the following order:
On count one (rape): the
accused is found guilty as charged.
On count two (sexual
assault): the accused is found not guilty and he is discharged.
On count three (rape):
the accused is found guilty as charged.
On count four (sexual
assault): the accused is found guilty as charged.
On count five (rape): the
accused is found not guilty and he is discharged. He is found guilty
on the competent verdict of attempted
rape.
On count six (sexual
assault): the accused is found guilty as charged.
______________________
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
For
the State: Mr Willemse
Director
of Public Prosecutions
For
the accused: Ms Dyantyi
Legal
Aid
Argument
heard on: 21 June 2019
Judgment
delivered on: 24 June 2019
[1]
The accused is referred to by the complainants as “Malume”
which means maternal uncle.
[2]
According to what Layola could see the accused first inserted his
penis into her “butts” while she was standing.
He then
changed and inserted his penis “into her buttocks” for
the second time while she was kneeling.
[3]
According to Inam’s observations Layola was instructed to lift
one of her legs and place it on the accused’s chest.
Thereafter he “inserted his penis into her buttocks”.
[4]
According to Layola this happened before Lindo was raped.
[5]
It appears from Lindo’s evidence that they were not permitted
to go to the bushes.
[6]
This evidence that the accused told his mother in the presence of a
full house that these children had asked to be raped was
overheard
and confirmed by Inam and both her parents. Indeed, it was the
evidence of Inam’s mom that she knew the accused
and was
shocked by what he had said. She said that being a parent himself,
his reaction to such a bizarre invitation ought to
have been to
discipline the children. Then they would have been discussing an
assault as opposed to rapes.
[7]
According to Segen’s medical dictionary, in a young child,
absence of an anal wink or reflex is likely associated with
nerve
damage.
[8]
The word ‘friable’ refers to tissue that tears, sloughs
and bleeds more easily when touched. It is tissue which is
overly
sensitive and easily irritated usually as a result of duress,
contact and especially rubbing.
[9]
R v
Manda
1951 (3) SA 158 (A) 162
[10]
Woji v
Santam Insurance Co Ltd
1981 (1) SA 1020 (A) 1028 B-D
[11]
Manda
above 163
[12]
S v
Snyman
1968 (2) SA 582
(A) 585D