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[2018] ZAKZPHC 7
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T.E.B v S (AR358/16) [2018] ZAKZPHC 7 (29 March 2018)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 358/16
In
the matter between:
T
E
B
Appellant
and
THE
STATE
Respondent
Coram:
Koen J (Henriques J concurring)
Heard:
23 March 2018
Delivered:
29 March 2018
ORDER
The
appeal against conviction and sentence is dismissed and the
conviction of rape and the sentence of life imprisonment are
confirmed.
JUDGMENT
KOEN
J
[1]
The Appellant, a 55 year old male, was convicted of having during the
period from April 2012 to 2014 and on diverse occasions
raped BSB,
[1]
his daughter who at the time was 7 years of age. On 28 August 2015 he
was sentenced to life imprisonment. The present appeal
lies
against his conviction and sentence pursuant to his automatic right
of appeal.
[2]
As regards his conviction it was submitted on behalf of the Appellant
that he was wrongly convicted for one or more of the following
reasons:
(a) He was convicted on the single
evidence of BSB whom the learned magistrate wrongly accepted as a
‘good witness’;
(b) That the complainant and her
mother, N S, gave contradictory evidence whether one B stayed with
the mother;
(c) That the complainant had conceded
that she would do what her mother tells her to do including tell the
court that her father
had raped her;
(d) That the complainant was
mendacious having advised the Appellant’s girlfriend, that her
father had not raped her, which
she subsequently sought to explain
away as ‘joking or fooling, I was deceiving her’;
(e) That the complainant had failed to
tell her mother that three unknown males had also raped her;
(f) That the complainant failed to
identify her father as the rapist in court; and
(g) That the medical evidence was
neutral since the injuries observed in her vaginal area could have
also been caused by these three
unknown males.
[3]
I do not intend summarising the evidence of the various witnesses in
this judgment in detail, as their evidence is a matter
of record. I
shall only refer to some of the salient features thereof.
[4]
The complainant had testified that it was first her father who had
raped her and ‘then’, i.e. subsequently, three
boys on
another occasion who had raped her. Dr Kunene who had examined the
complainant but only during 2014 when she was nine,
testified that
she had told him that she had been sexually assaulted by her father
plus three unknown guys on unknown dates. He
had found evidence of an
old sexual assault and tears on her hymen. The findings on the
gynaecological examination were concluded
to be ‘suggestive of
sexual penetration.’ The medical evidence is however largely
neutral in deciding the issue as
to whether the Appellant had
penetrated the complainant. The present was not an instance of a
child who complains of only one act
of penetration by a particular
offender where the nature and extent of the injuries may assume much
more significance. The injuries
suggestive of sexual penetration
could equally have been inflicted by the three unknown men who
subsequently raped her.
[5]
Whether the Appellant is guilty of having raped his daughter must be
assessed in the light of the evidence viewed chronologically
from the
time that the rape was first reported and against the background of
the circumstances prevailing at the home of the complainant.
[6]
As regards the home environment, the Appellant and his wife, the
mother of the complainant namely N S had lived together until
they
parted ways in 2011. When they parted ways the Appellant did not want
her to leave with the complainant, stating that the
complainant
belonged to that home. The complainant was thereafter living with the
Appellant in his home whilst her mother was living
elsewhere.
[7]
Ms Jiyane, the head of department at Sizakela Primary School where
she is also responsible for the wellbeing of her students,
which is
the school attended by the complainant, testified that she had
received a report from the Grade 1 class teacher of the
complainant,
Ms Ngwenya regarding a certain sketch or drawing which the
complainant had made. The complainant was sent to her office
with
this drawing which depicted two people with their lips attached and
their private parts touching. She asked the complainant
what these
people were doing to which the complainant responded that they were
‘having sexual intercourse.’ She thereafter
asked the
complainant where she had learned this and the complainant then
spontaneously reported that ‘her father is having
sexual
intercourse with her.’ Ms Jiyane confirmed that the complainant
had told her specifically that her biological father
was the one who
had raped her. Further she confirmed that the complainant never said
anything about anyone else or any other persons
except her father.
This latter response was in reply to a suggestion that it was her
mother’s boyfriend B, who was referred
to as her “stepfather”
who had raped her and that she was confused between her father and
“stepfather”.
Ms Jiyane
inter
alia
confirmed that the
complainant would be aware of the distinction as they are taught at
school about the family.
[8]
Ms Jiyane thereafter reported the matter to the principal who gave
the instruction to call the complainant’s mother to
come to
school. Prior to this, no report had been made to the mother, and the
complainant’s mother in her evidence confirmed
that the first
time she heard about the rape was at school when she was summoned
there. Ms Jiyane had also observed that the complainant
was walking
awkwardly, sort of limping. When she asked her about that, the
complainant pointed at her ‘private parts saying
that it was
painful.’
[9]
The complainant’s mother took the matter no further, apparently
due to a lack of financial resources, and not withstanding
pleas by
Ms Jiyane to her that she please take the complainant for a medical
examination. Eventually only in 2014 when the department
of social
welfare provided the school with youth care workers, was the matter
handed to the latter. It was the evidence of the
complainant that one
B resided with her mother. The complainant’s mother however
testified that there was no man living with
her. Although this is a
contradiction, the mother’s version, being one advanced for
reasons best known to herself, the contradiction
does not relate to
material aspect of the case. There was no evidential foundation to
suggest that B had raped the complainant,
other than pure speculation
on the part of counsel for the Appellant at the trial.
[10]
The complainant was also asked as to whether she would do exactly
what her mother tells her to do, which she confirmed. She
was then
asked whether ‘if your mother can tell you now that tell the
court that your father raped you would you be able
to tell the court
that’ to which she said ‘I would have done that.’
The suggestion therefore was that because
of the bad blood between
the complainant’s mother and the Appellant, the charge of rape
was one which had been falsely fabricated
against him at the
instigation of the complainant’s mother.
[11]
That proposition can in my view safely be discounted. The
complainant’s mother did not know about any suggestion of a
rape by the Appellant until it had first been disclosed to the first
report, Ms Jiyane. She could therefore not have fabricated
the
accusation and planted it as a seed in the mind of the complainant,
otherwise the initiative for reporting the rape would probably
have
emanated from the complainant or her mother and to be discovered in a
roundabout way by Ms Jiyane. The doctor’s findings
had been
consistent with old injuries of a sexual assault. According to the
complainant’s mother’s evidence the complainant
had not
told her about the rape by the three unknown boys. The complainant’s
mother would accordingly not have known that
there would be medical
evidence consistent with penetration affording her an opportunity to
falsely fabricate charges that the
complainant’s father had
raped his daughter. The statements elicited from the complainant
under cross-examination, in my
view, are also more consistent with
the complainant confirming, after her mother had become aware of the
allegations pursuant to
a visit to the complainant’s school
that her father had raped her, admonishing the complainant to tell
the court the truth.
The truth she was required to tell was that it
was her father who had raped her. This is what the complainant
confirmed she would
do. The evidence of the complainant
in its totality, particularly the vehement subsequent denials that
she was falsely
implicating her father, are inconsistent with the
notion that she was simply repeating a false version her mother had
told her
to repeat in court.
[12]
It is also in that light that the statement by the complainant that
she was joking or fooling with her ‘stepmother’
stating
that her biological father had not raped her, must be understood. It
could hardly be expected of a 7 or 9 year old child
when confronted
by the girlfriend of the person who had raped her, who was her
father, to openly declare that he had in fact raped
her. More likely
is her version that in replying that her father had not raped her,
she was ‘fooling’ her ‘stepmother’
and was
‘deceiving her’. But that does not mean that she was now
similarly deceiving the court.
[13]
Finally, reliance was placed on the fact that when at the end of her
evidence the complainant was called to come into the court
from the
adjoining room from where she had been testifying to identify the man
who had raped her, she was unable to identify her
father in the dock.
It appears that he had shaved his hair and beard and looked different
during his trial. There can, however,
be no suggestion of confusion
in the identity of the person who raped her, if it was indeed her
father. She referred to him by
his first name ‘E’,
confirmed his surname as ‘B’, had told Ms Jiyane that her
father had raped her, also
repeated that as part of the historical
explanation given to Dr Kunene, and repeated that evidence in court.
[14]
The complainant was also criticised for having said that her father
had raped her more than a 100 times. However, she immediately
continued to state that ‘100’ is ‘a lot’. No
doubt this was an exaggeration and all she simply sought to
convey
was that she had been raped by him many times. The uncontroverted
evidence was that her father required her to sleep with
him in his
bed every night. It is so that she was unable to provide details of
any other occasions. That is a criticism of her
evidence which might
in other contexts have suggested that she had been precognized in
regard to one incident only, thus possibly
suggesting false
fabrication. Her evidence must however be weighed against the
totality of all the evidence, notably that the only
reason the
rape(s) on the complainant was discovered was because of the diagram
drawn at school, and the initial report to Ms Jiyane.
The only
alternative scenario would be that the complainant of her own
volition, having been traumatised by the rape by the three
boys, drew
the diagram which led to her being referred to Ms Jiyane, where she
then, because of her hatred for her father decided
to blame him
falsely as the rapist because it might result in her being removed
from his care. That scenario however ascribes a
considerable level of
deviousness and craftiness to a 7 to 9 year old child. The
complainant had confirmed that she did not love
her father ‘from
a long time ago’, later stated to be ‘since 2013’,
but that was because he ‘did
something painful to me which I
don’t like’.
[15]
On the evidence by the State witnesses there was evidence on which a
court could find in favour of the State. The application
for a
discharge of the Appellant at the end of the State case was rightly
refused. The Appellant thereafter failed to testify.
There being
evidence which called for an answer which the Appellant failed to
address, offering nothing to counter that evidence,
the irresistible
conclusion on a totality of all the evidence was that there was
nothing to disturb or rebut the evidence of the
complainant. Her
evidence was complete and satisfactory in every material respect.
That she on her own admission lied to her ‘stepmother’,
in order to fool her, does not
per
se
detract from her
credibility in testifying that it was her father who had raped her.
Likewise does her inability to recognise her
father in court with his
head and beard shaven detract from the fact that she must have known
that the person who raped her was
her father, whom she clearly
identified by name and surname. Her evidence was also consistent with
her spontaneous report to Ms
Jiyane that it was her father who had
raped her. Such further criticisms as there are relating to the
conflict between her evidence
and that of her mother regarding
whether B resides with her mother, is not material to the present
charge. Even as improbable as
it might be that a girl of her age in
her position would not have reported the rape by the three other men
to her mother, this
was a dysfunctional family where her contact with
her mother was limited if not non-existent. The complainant did
report the rape
by the other three men to the social worker and to
the doctor who examined her. Whether she had been raped by others is
furthermore
not material to the present charge which simply
interrogates the question whether her father had also raped her.
[16]
The trial court was furthermore steeped in the atmosphere of the
trial. The learned magistrate observed the witnesses and accepted
the
evidence of the complainant. She repeatedly stated that it was her
father, the Appellant who had raped her. Despite suggestions
in
cross-examination that the allegation had been fabricated and was
being advanced by her at the insistence of her mother, and/or
that
she was mistaken and that B was the one who had raped her, she did
not deviate from her version that it was the Appellant
who had raped
her. These suggestions, simply remain suggestions posed in
cross-examination, and were never elevated to the level
of evidence,
due to the appellant’s failure to testify to deny the
allegations by the complainant, which would have required
him being
subjected to cross-examination to test the veracity of such evidence.
[17]
I am not persuaded that the learned magistrate erred in convicting
the appellant as charged.
[18]
As regards the sentence, rape is a serious offence, and all the more
so the rape of a 7 year old girl, particularly when raped
by her
father who has abused the position of trust he occupies in relation
to his daughter. In the present instance the Appellant
had
furthermore isolated the complainant from her mother and was
therefore all the more required to take particular good care of
her.
He failed to do so.
[19]
I am unable to find that the learned trial magistrate in any way
committed a misdirection in having regard to the nature of
the
offence and the personal circumstances and features relating to the
Appellant, in concluding that there were no substantial
and
compelling circumstances present.
[20]
The appropriate order is accordingly one dismissing the appeal and
confirming the conviction and sentence.
___________________________________
KOEN
J
___________________________________
HENRIQUES J
Appearances
For
the Appellant: ADV. Z ANASTASIOU
Instructed
by: JUSTICE CENTRE: PIETERMARITZBURG
For
the Respondent: ADV C KANDER
Instructed
by: DIRECTOR OF PUBLIC PROSECUTIONS, PIETERMARITZBURG
[1]
As the complainant
is a minor, her identity is not disclosed but her initials used to
refer to her.