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[2018] ZANCHC 95
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P v S (CA & R 81/2017) [2018] ZANCHC 95 (13 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
no: CA & R 81/2017
Not
reportable
In
the matter between:
P
APPELLANT
And
THE
STATE
RESPONDENT
Heard:
06 November 2017
Delivered:
13 April 2018
Coram:
Phatshoane ADJP
et
Lever AJ
JUDGMENT
Phatshoane
ADJP
[1]
On 14 July 2016 Mr P aged 54 was convicted on two counts, rape and
assault
with intent to do grievous bodily harm (assault GBH), in the
Kimberley Regional Court, by Magistrate M Qomoyi. On 29 July 2016 he
was sentenced to 15 years imprisonment for rape and three years for
assault GBH, which sentences were ordered to run concurrently.
He is
before us on appeal against his convictions and sentence with leave
of this Court and is on bail pending this appeal.
[2]
The appellant stood trial on five counts. His 13 year old
stepdaughter,
Ms S, is the complainant. The five charges are:
2.1
Count 1, sexual assault. It was alleged that during or about
September 2014 he unlawfully and intentionally sexually violated Ms
S
by touching her breasts and vagina without her consent;
2.2
Counts 2 and 3, rape. It was said that on or about October
2014 he unlawfully and intentionally committed an act of sexual
penetration
on Ms S by inserting his penis into her vagina without
her consent;
2.3
Count 4, rape. The State contended that during or about
February 2015 he unlawfully and intentionally committed an act of
sexual
penetration on Ms S by inserting his finger into her vagina
without her consent; and
2.4
Count
5, assault GBH. It was said that on or about 19 July 2015 he
unlawfully and intentionally assaulted Ms S by hitting her with
a
"sjambok"
[1]
over her
body with the intention
to cause
her
grievous bodily harm.
[3]
The appellant pleaded not guilty on all counts and elected not to
testify.
In his plea explanation he denied the outlined allegations.
In respect of assault GBH he admitted to beating the complainant with
a "sjambok" but disputed that he had the intention to cause
her grievous bodily harm. He claimed to have merely chastised
her
several times before the incident in issue when she came home late
and lied about her whereabouts.
[4]
The Magistrate found the complainant's explanation, that the rapes
were
painful, to be inconsistent with the medical evidence. In the
main she found that the complainant did not report the sexual assault
and the two incidents of rape referred to in Counts 2 and 3 at the
first opportunity. In addition, she held that the complainant's
evidence was contradicted by other state witnesses. On these
conspectus she acquitted the appellant on Count 1, sexual assault,
and on the two counts of rape.
[5]
In respect of Count 4, the Magistrate found that the complainant
reported
to her mother, their neighbour, Ms M ("Ous Peggy"),
and her daughter, Nosi Tokela, that the appellant inserted his finger
into her vagina at the park. The Magistrate rejected the argument
that the complainant and Ous Peggy connived to implicate the
appellant falsely or that Ous Peggy had a grudge against him. In
respect of Count 5 the Magistrate was of the view that, apart
from
the fact that the appellant admitted to whipping the appellant, the
medical evidence was consistent with the complainant's
evidence. She
held that the evidence presented by the State, in respect of Count 4
and 5, called for an answer from the appellant.
Insofar as he failed
to rebut the allegations made against him it followed that the
evidence adduced excluded any reasonable doubt
about his guilt. She
convicted him on counts 4 and 5, rape and assault GBH.
[6]
The grounds of appeal were presented in the form of argument and
mainly
highlights the contradictions in the complaint's evidence
vis-a-vis that of the other State witnesses. In summary the grounds
of
appeal, as paraphrased, are the following:
6.1
The State did not adduce sufficient evidence to prove its case beyond
reasonable doubt. It is
contended that the complainant was a single
witness on the alleged rapes and that her explanation of assault GBH
is at odds with
the appellant's plea explanation that he merely
chastised her and did so not with the intention to cause her grievous
bodily harm.
6.2
The complainant was not a credible witness. Regard being had to her
evidence that the rapes were
a painful experiences, it was argued
that, it was improbable that she would not have suffered injuries
after she was raped twice
and thereafter penetrated with a finger in
her private part.
6.3
To the extent that the complainant testified that she told Nosi that
the appellant raped her on
two occasions and instructed Nosi to tell
her mother (Ous Peggy) her evidence was contradicted by that of Nosi
who strenuously
denied this allegation.
6.4
The complainant contradicted her mother's version with regard to the
time that she reported the
rape that the appellant perpetrated by
insertion of his finger into her vagina (the park incident).
6.5
It is contended that the complainant had the tendency to tell lies as
confirmed by her mother.
The complainant herself also testified that
she lied to her parents on regular basis regarding her whereabouts.
6.6
The complainant's mother confirmed the appellant's version that there
was some collusion between
Ous Peggy and the complainant and that the
former had a negative attitude towards the appellant because, amongst
others, he kept
sheep in the yard which she claimed caused flies and
constructed a shelter for the complainant's mother with poles he
sourced from
the veld. It is contended that this conspiracy is
supported by the complainant's conduct in discussing the park
incident with Ous
Peggy before reporting same to her mother.
6.7
It is further contended that the probabilities in respect of the plot
between the complainant
and Ous Peggy to implicate the appellant
falsely is inescapable because the latter reported the incident to
the social workers.
It was argued that it was odd that the
allegations of rape surfaced not on the complainant's own free will
but from Ous Peggy after
the appellant had chastised the complainant.
It was further argued that the negative attitude that Ous Peggy had
towards the appellant
is evident from the statement she made to the
police, in particular, where she intimated that the she had been the
family's neighbour
for years until
"die
ma
met Joseph
(the appellant) deurmekaar geraak het."
6.8
The Court
a quo
accepted the complainant's version in respect
of counts 4 and 5 as the truth while rejecting her version in respect
of Counts 1
to 3. It is contended that the trial Court's explanation
for the acceptance of the evidence in respect of counts 4 and 5 on
the
basis that the incidents were reported and therefore served as
corroborative evidence was erroneous. It was argued that the fact
that certain offences were reported pointed to the machination
between the complainant and Ous Peggy to implicate the appellant
falsely.
6.9
It is further contended that the appellant had no intention to cause
the complainant grievous
bodily harm. He chastised her as a parent to
admonish her from being disobedient. It is argued that Ous Peggy's
evidence that the
complainant had welts all over her body evinces her
negative portrayal of the appellant. It was submitted that there were
no serious
injuries that the complainant sustained following the
beating, as has been found by the trial Court. This notwithstanding,
the
Court a
quo
found him guilty of assault GBH.
6.10 In
respect of the sentence of three years imprisonment, for assault GBH,
it was contended that the Court a
quo
wrongly found that a
previous conviction of assault, which was already 19 years old, had
to be taken into account in terms of the
Criminal Law Amendment Act,
105 of 1997 (minimum sentence regime), for purposes of determining
the appropriate sentence.
[7]
Even though the appellant was acquitted on some of the counts and the
alleged offences are said to have been committed at different times
with diverse factual matrix it is essential to briefly set out
the
background pertaining to the five counts because the question of
credibility of the witnesses runs through the whole chain
of events.
[8]
The appellant was in a 13 year long-term relationship with the
complainant's
mother and shared a home with her, the complainant and
his four year old son. He raised the complainant from the time she
was about
two years old. During September 2014 the complainant says
that, while taking a bath in her bedroom and was naked, her
stepfather,
the appellant, entered and ordered her to turn around.
When she did so he touch her breast and her private parts and told
her that
she was getting beautiful and growing up. She was scared as
she never thought that the appellant would act in that manner. She
did not report the incident to her mother because the appellant
warned her not to betray him.
[9]
One evening in October 2014 around 08h00, while the complainant was
asleep,
the appellant entered her bedroom and laid next to her. He
ordered her to turn around; he took off her panty and inserted his
penis
into her vagina without her consent and had sexual intercourse
with her without a condom. This lasted for a long period and was
painful. Her mother was sleeping in an opposite room with the door
slightly ajar. She did not call her mother out for help as she
was
scared.
[10]
The next day at 12h00 midnight whist her mother was asleep in the
parental bedroom the
appellant raped her once more. When he was done
he ordered her not to utter a word. She nevertheless informed Nosi,
her friend
who lived next door, weeks later and requested her to tell
Ous Peggy, Nosi's mother, about the rapes. Nosi denied that the
complainant
reported the rapes to her or that the appellant touched
her inappropriately. Nosi testified that the complainant told her
that
the appellant had a problem when she covered herself with a
towel after taking a bath.
[11]
The complainant says on 14 February 2015, the following year, she
socialised with a certain
boy at a park from 21h00 to 24h00. Upon her
arrival home her parents enquired where she had been. She first lied
that she was with
her girlfriends but confessed when they disbelieved
her. On the appellant's instruction she took him and pointed out the
spot in
the park where they sat. He enquired what they were doing.
She explained but he accused her of lying and said she had been
engaged
in sexual intercourse with the boy under one of the shelters
situated in the park. He pulled her by her trouser and said he wanted
to inspect if she had intercourse with the boy and inserted his
finger inside her vagina without her permission. She reported the
incident to her mother when she woke up the next morning. The mother
summoned the family for advice. The appellant denied the allegations.
The family threatened to report the incident to the police if it were
to recur. The conclusion by the family was that they did
not know
who, between the complainant and the appellant, was telling the
truth. The complainant did not inform the family about
the previous
two incidents of rape because she felt that it was already too late
to report them. After this meeting the complainant
approached Ous
Peggy, their neighbour, and reported the park incident to her. Nosi
also confirmed that the complainant informed
her of this incident.
[12]
The complainant says on 19 July 2015 she visited her aunt in
Delportshoop. On one occasion
whilst in Delportshoop she arrived home
around midnight. This prompted her aunt to call her mother and
informed her of the indiscretion.
Upon her arrival in Kimberley the
appellant confronted her concerning the report. She explained that
she was with her friend but
his father accused her of lying and hit
her repeatedly with a sjambok on her upper leg in the presence of her
mother. She sustained
injuries (reddish welts) on her left upper leg.
The complainant's mother confirmed that the appellant hit the
complainant but said
it was moderate:
"Hy het [haar]
net op sy boud getik”.
She also had a welt on
her buttock. The next day the complainant informed Ous Peggy of the
whipping and the latter told her that
she would report the matter to
social services.
[13]
Ous Peggy confirmed that the complainant reported to her that her
father hauled her to
the park where he put his fingers in her private
part to test if she had been engaged in sexual intercourse. She says
that after
the complainant's family meeting to discuss this incident
the complainant came to her and informed her that his father said she
must recant her disclosure. She further confirmed that after the
complainant's visit to Delportshoop she reported to her that her
father assaulted her because she wandered around. She saw some welts
on the complainant following her beatings. She then approached
social
services for help. She accompanied the social workers to the
complainant's school to fetch her. During the complainant's
questioning she heard for the first time of the two rapes the
appellant allegedly perpetrated against her.
[14]
Ms Claudelia Jenkins, a nursing sister, examined the complainant on
22 July 2015, almost
four months following the alleged insertion of
the appellant's finger into the complainant's private part and two
days following
the alleged assault. She observed two welts on the
complainant's left upper leg. She did not observe any injuries on her
genitalia
but said that vaginal penetration by means of a finger
could not be excluded. She confirmed that this may also entail the
absence
of penetration. She indicated that the hymen would show a
cleft or an old injury that has healed if the victim had sustained
prior
injuries. In this case, she intimated, there was no cleft or
old injuries she could observe on the complainant's genitalia. Her
hymen was intact.
[15]
The only
incriminating evidence against the appellant on the Count of rape,
the alleged insertion of his finger into the complainant's
private
part, is that of the complainant. It is so that the child's
vulnerability and susceptibility to manipulation deserves sharp
scrutiny and should be considered
with great
care. The complainant is a single witness whose evidence has to be
approached with caution. In
S
v V
[2]
the Supreme Court of Appeal pronounced:
'[2] In view of the
nature of the charges and the ages of the complainants it is well to
remind oneself at the outset that, whilst
there is no statutory
requirement that a child's evidence must be corroborated, it has long
been accepted that the evidence of
young children should be treated
with caution
(R v Manda
1951 (3) SA 158
(A) at 163 C,
Woji
v Santam Insurance
Co
Limited
1981 (1) SA 1020
(A) at 1028
8-D); and that the evidence in a particular case involving sexual
misconduct may call for a cautionary approach (
S v J)
1998 (2)
SA 984
(SCA) at 1098).'
[16]
It is
trite that the Court is entitled to convict on the evidence of a
single witness
if it is
satisfied beyond reasonable doubt that such evidence is true
[3]
or that such evidence is substantially
satisfactory
in every material respect, or if there is corroboration.
[4]
The Court will weigh that evidence, consider its merits and demerits
and, having done so, will decide whether it is trustworthy
and
whether,
despite the
fact that there are shortcomings or defects or contradictions in the
evidence it is satisfied that the truth has been
told.
[5]
[17]
As already pointed out, the question of credibility of the witnesses
runs through the whole
chain of events as foreshadowed in all the
charges. There are a number of issues negatively impacting on the
complainant's credibility
when considering her evidence as a whole
together with that of the other witnesses. To highlight few of these
inconsistencies:
17.1 She says
that she reported to Nosi about the two rapes mentioned in Count 2
and 3 weeks after the commission of
these offences and requested her
to disclose this to her mother, Ous Peggy. Nosi categorically
disputed it. On the reading of the
record Nosi appears to be a
trustworthy witness. I am of the view that complainant was less than
frank on this aspect.
17.2 She also
gave further conflicting versions on her failure to report the two
rapes. Her evidence was to the effect
that she was scared to report
the two rapes to Ous Peggy lest she inform her parents about them.
When confronted on this she intimated
that she did not want to
personally inform Ous Peggy about the rapes but did so through Nosi.
On the question whether she was not
afraid that Ous Peggy will make
the disclosure to her parents, having been apprised thereto by Nosi,
she replied negatively. On
further probing whether her earlier
testimony to the effect that she was scared to report the incident
was untruthful she gave
various unsatisfactory responses and ended up
saying that she did not want to personally discuss "such things"
(the rapes)
with Ous Peggy. What is remarkable is that while she said
she did not want to discuss "such things" with Ous Peggy
she
nevertheless reported the vaginal penetration.
17.3 The
complainant plucked up courage to tell her mother about park incident
and said she did not think that she will
reveal this to her father
but would instead report the matter to the police or the social
workers. She further intimated that she
was not afraid to tell Ous
Peggy of the same incident and the whipping because the acts did not
involve sexual intercourse. What
is remarkable about this is that she
did not inform Ous Peggy about the first incident, where the
appellant allegedly touched her
breast and private parts. This
incident did not involve sexual intercourse. When confronted on this
discrepancy she said she was
under the impression that it will never
happen again. On her version, it happened again. She was allegedly
subjected to painful
rapes on two consecutive nights but kept her
silence.
17.4 While in
her examination-in-chief she said she told Ous Peggy about the
incident at the park following the family
meeting that was called by
her mother, under cross examination she said she did so after a few
days. As it shall be recalled she
testified having told her mother of
this incident when she woke up in the morning. Her mother's evidence
was that it was in the
afternoon after she had told Ous Peggy. When
confronted on the discrepancy she intimated that she was not certain
to whom she disclosed
the incident first. That may well be.
[18]
It is a settled norm that the evidence must be assessed holistically
in order to determine whether
the guilt of an accused person was
established beyond any reasonable doubt.
[6]
On the above analysis it cannot be said that the attack on the
complainant's credibility as set out in the grounds of appeal is
without any substance.
[19)
As already alluded to, in convicting and in other instances
acquitting the appellant of the rapes the Magistrate largely based
her finding on whether the complainant had reported the incidents. It
has been held that the facts and contents of a complaint
in a sexual
misconduct case can be used only to show that the evidence of a
complainant who testifies that the act complained of
took place
without her consent, is consistent. It is relevant solely to her
credibility. The complaint cannot be used as creating
a probability
in favour of the State's case.
[7]
[20]
The evidence of a report cannot serve as corroboration. In my view,
the complainant's evidence
was not substantially satisfactory to
merit the conviction for rape. The State conceded in this appeal that
it failed to prove
its case beyond a reasonable doubt that the
appellant raped the complainant by inserting his finger into her
vagina. This concession
was well made. It follows that the conviction
on Count 4, rape, ought to be set aside.
[21]
Concerning Count 5, the complainant confirmed that she would arrive
at home after midnight.
She also confirmed, on more than two
occasions during her testimony, having lied to her parents about her
whereabouts for which
her father chastised her. The complainant's
mother intimated that if she was in a physical position to administer
discipline on
her daughter she would have done so because she was
economical with the truth. She says that the beatings were moderate.
As already
alluded to, sister Jenkins observed two welts on the
complainant's body. The Magistrate quite rightly reasoned, albeit
during the
sentencing phase, that the injuries that the complainant
sustained were not of a serious nature. The State conceded that it
failed
to prove that the appellant had the intention to cause the
complainant grievous bodily harm. I am satisfied that the conviction
of assault GBH is not sustainable on the facts. The magistrate
misdirected herself in so convicting the appellant. It follows that
that conviction should be set aside and replace with that of assault
simpliciter.
[22]
On the question of the sentence, Insofar as we are disposed to
setting aside the conviction
on the Count of assault GBH and to
replace same with assault common, we are at large to interfere with
the sentence of three years
imposed by the trial Court and to
determine an appropriate sentence afresh.
[23]
The appellant is at present 57 years old and the sole breadwinner who
does odd jobs to
maintain his family. He took care of the
complainant's mother who underwent a hip operation and had impaired
physical mobility.
He pushes her on a wheelchair to get around. He
has a five year old son with the complainant's mother; three children
from his
previous marriage who are already of age; and a 15 year old
child from a previous relationship whom he is still maintaining. He
has four previous convictions. In 1985 he was found guilty of assault
and sentenced to a fine of R40.00. In 1996 he was found guilty
of
assault and sentenced to a fine of R500.00 or three months
imprisonment. In 1998 he was found guilty of theft and sentenced
to a
fine of R600.00 or three months imprisonment. Lastly in 2014 he was
found guilty of possession of drugs and paid an admission
of guilt
fine in the amount of R150.00. These offence are not only
inconsequential but have, save for the 2014 admission of guilt,
also
superannuated.
[24]
The Magistrate imposed a sentence of three years imprisonment on the
basis of a wrong conviction
and on the incorrect premise. On the
facts of this case the sentence of three years imprisonment is
disproportionate to the crime,
the offender and the interest of the
society. I am of the view that the sentence of 12 months imprisonment
wholly suspended on
certain conditions meets this case. I make the
following order.
Order:
1.
The appeal is upheld to the following extent:
2.
The conviction on Count 4, rape, is set aside.
3.
The conviction on Count 5, assault with intent to do grievous
bodily harm, is set aside and replaced with the following:
"The accused is
convicted of assault common."
4.
The sentence of three years imprisonment on Count 5 is set
aside and replaced with the following:
"The
accused is sentenced to 12 (twelve) months imprisonment wholly
suspended for a period of five (5) years on condition that
the
accused is not convicted of an offence involving an assault or an
offence involving violence on the person of another committed
during
the period of suspension."
MV
Phatshoane ADJP
Lever
AJ concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR
THE APPELLANT:
Adv A.
Van Tonder
Legal
Aid SA: Kimberley
FOR
THE RESPONDENT:
Adv R Makhaga
The
Director of Public Prosecutions
[1]
A long stiff whip originally made of rhinoceros hide (Online -Oxford
living dictionaries)
[2]
2000 (1) SACR 453
(SCA) at 454 para 2
[3]
R v Abdoorham 1954 (3) SA 163 (N)
[4]
S v Mahlangu and another 2011 (2) SACR 164 (SCA)
[5]
S v Sauls and Others 1981(3) SA 172 (A) at 180E-G
[6]
S v Shilakwe
2012 (1) SACR 16
(SCA) para 11
[7]
S v Gentle
2005 (1) SACR 420
(SCA) 431 para 19.