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[2018] ZANCHC 34
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Nedbank Limited v Louw (CA&R81/2017) [2018] ZANCHC 34; 2382/2017 (22 June 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-à-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 t
he
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 B-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 t
he
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.