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[2016] ZAKZPHC 10
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Duma v S (AR 429/2015) [2016] ZAKZPHC 10 (11 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 429/2015
DATE:
11 FEBRUARY 2016
Not
Reportable
In the
matter between:
BOY
ROBERT
DUMA
.............................................................................................................
Appellant
And
STATE
.....................................................................................................................................
Respondent
Coram:
Gorven and D Pillay JJ
Heard
:
9 February 2016
Delivered:
11 February 2016
ORDER
On
appeal from
Regional Court for the
Regional Division of KwaZulu-Natal, Pietermaritzburg (Ms Linda):
1
The appeal is dismissed and the conviction
and sentence are confirmed.
JUDGMENT
Gorven
J (D Pillay J concurring):
[1]
The appellant, a 60 year old man, was
charged with one count of rape under the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. It was
alleged that, during July 2012, he inserted his penis into the vagina
of a 9 year old girl from his neighbourhood. He pleaded
not guilty
and elected not to disclose his defence. His trial took place in the
Regional Court, Pietermaritzburg. He was convicted
and sentenced to
15 years’ imprisonment. The appellant’s application for
leave to appeal against his conviction and
sentence was refused by
the trial court. This court granted him leave to appeal against his
conviction and sentence on petition.
[2]
The complainant was 11 years old when she
testified. She gave evidence with the assistance of an intermediary
in terms of
s 170A
of the
Criminal Procedure Act 51 of 1977
. She
said that, on one late afternoon during July 2012, she and two
friends were playing in the road. It was beginning to get dark.
I
shall refer to the friend who gave evidence as N. They saw the
appellant alight from a minibus taxi. He gave her friends R1 to
buy
some sweets and told the complainant to accompany him. He walked with
her to his home. On their arrival, he closed the door,
took off her
panties, put her on top of the bed, undressed himself and then
inserted his penis into her vagina, performing some
movements. After
climbing down, he remounted her and repeated his actions. He did this
on five occasions. She was crying but he
blocked her mouth with his
hand. She felt severe pain in her vagina and noticed a white
discharge from it. He then dressed himself
and she did likewise. He
gave her bread and an apple and threatened that if she told anybody
of the incident, he would kill her.
She did not tell anyone. This was
the first occasion on which he had done this to her.
[3]
She testified that some days later, her
mother noticed that when she urinated, the sound made was not like
that of a child urinating
but like that of a woman. Her mother
inspected her and asked whether anyone had been interfering with her
and the complainant responded
by saying ‘yes’. Her mother
called the neighbours and thereafter the police became involved.
[4]
N, also with the assistance of an
intermediary, testified to similar effect. She had been 8 years old
at the time. In addition,
N said that when she and her friend
returned from purchasing sweets, they went to the home of the
appellant and found the door
locked. They could hear the complainant
crying behind the locked door and calling for N to help her. N did
not report this because
the appellant used to buy fruit for them. She
saw the complainant again that day and asked her why she was crying.
The complainant
responded that ‘an old man told her to take off
her panty which she did and an old man caused her to lie on the bed
after
that then an old man inserted his thing to her.’ When she
was told this she reported the incident to the complainant’s
mother. She did so on a Thursday.
[5]
The mother of the complainant confirmed
that she was alerted to the problem by the
sound of the complainant urinating. She also confirmed having
inspected the complainant
and having called the neighbours. She also
testified that the complainant had suddenly no longer been able to
cope at school. The
complainant initially pointed to an 8 year old
boy as the perpetrator. The mother was not satisfied with this and
implored her
to identify her true assailant. When the police arrived,
the complainant became anxious and tearful and identified the
appellant.
She was taken to a medical doctor who subsequently
testified. The mother said that, when she asked the complainant, she
was told
that this was not the first time that the appellant had done
this to her. There was no mention in her testimony that the
complainant
told her that the appellant had repeated his actions on
five occasions. There was also no mention in her testimony that N had
reported
the incident to her.
[6]
The doctor, a paediatric registrar at
Grey’s Hospital, testified. She said that she examined the
complainant on 11 July 2012.
The complainant was tearful and
withdrawn when relating what had happened. She was told that the
incident took place on 6 July
2012. Her notes were not clear, but
talk of ‘the last incident’ being on 6 July 2012. No
mention was made of the five
time repetition. It is recorded in her
notes that the complainant’s mother had been called into school
before it closed as
the behaviour of the complainant had changed; she
had become anxious, withdrawn and was not concentrating in school.
The hymen
of the complainant was absent, this was not normal in a
nine-year-old girl and sexual assault could not be ruled out.
[7]
Under cross-examination, it was put to both
the complainant and her friend that the appellant only ever gave food
such as apples
to a certain boy called Xolani. The complainant denied
this, saying that, apart from the occasion in question, the appellant
sometimes
called the children to sing for him in his home and would
thereafter give them apples. The complainant’s friend gave the
same answer. It was put to both the complainant and her mother that
there was strife between the two families. Her mother confirmed
that
the relationship was not good, but indicated that she only knew the
accused and his son, not his wider family. She stated
that they
attended the same church as the appellant, who was the pastor of the
church. She had trusted the appellant as a result
and allowed the
complainant to go to him from time to time. The difficult
relationship was between the complainant’s grandmother
and the
appellant. It was also put to the mother of the complainant that the
wife of the appellant was always at home with him.
The response of
the mother was that she did not know the name of his wife. She said
that the appellant has many women, but that
she wondered whether this
particular person was the one which the appellant had recently struck
with a bush knife.
[8]
The appellant testified in his own defence
and called two witnesses. He denied that he had raped the
complainant. He also denied
that he had ever given sweets or apples
to any children other than a young boy called Xolani. He speculated
that the family of
the complainant held a grudge against his family
because, although they already occupied two RDP houses, they wanted
the one which
he had moved into and which was owned by his son. He
stated that trouble had begun between the two families before he
moved to
the area and that, in fact, he moved there because his son
requested him to assist in sorting out the difficulties between the
families. Under cross-examination, he eventually conceded that he had
asked the children to come to his home to sing for him and
thereafter
given them fruit. He explained that he had denied this because it
appeared to him that it was claimed that he had done
so with bad
motives. His explanation of hostility between the families was shot
through with contradictions and vagueness.
[9]
The son of the appellant contradicted him
almost totally concerning the family feud. He said that this only
began after the appellant
moved to stay with him. He said that only
the grandmother of the complainant was involved in the feud. He also
contradicted the
dates on which the appellant came to live in his
house and when he himself left the house. The wife of the appellant
gave evidence.
She claimed to have a good relationship with him but
it subsequently emerged that she had been hospitalised due to the
appellant
stabbing her with a bush knife as the mother of the
complainant had testified. She also conceded that, having said that
there had
been only one quarrel between her and the appellant,
serious arguments had taken place. In fact, after the arrest of the
appellant,
she burnt his clothing. It was quite clear that she was
simply supporting the appellant’s version.
[10]
No store can be set by the evidence of the
appellant and his witnesses. It was correctly rejected as being false
beyond reasonable
doubt.
[11]
That is not the end of
the matter. It is still necessary that the state prove beyond a
reasonable doubt that the appellant raped
the complainant. The
complainant was the sole witness to the rape. The cautionary rule
relating to single witnesses therefore operates.
The early dictum
that the evidence of a single witness must be ‘clear and
satisfactory in every material respect’
[1]
has been modified. The approach, which is set out in
S
v Sauls & others
,
[2]
is as follows:
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in
S
v Webber
1971
(3) SA 754
(A)
at
758). The trial Judge will weigh his evidence, will 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 testimony, he is
satisfied that
the truth has been told. The cautionary rule referred to by DE
VILLIERS JP in 1932 may be a guide to a right decision
but it does
not mean
"that the
appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded"
(
Per
SCHREINER
JA in
R v
Nhlapo
(AD 10
November 1952) quoted in
R
v Bellingham
1955
(2) SA 566 (A)
at
569). It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common sense.’
[12]
There was some lack of clarity in aspects
of the state case. The complainant testified that the appellant
repeated his actions five
times on the day in question. None of the
other witnesses indicated that the complainant had told them this.
The mother testified
that the complainant reported to her that this
was not the first time that the appellant had done this to her. This
may also be
an inference which can be drawn from the notes made by
the doctor who examined the complainant. The complainant’s own
evidence
was that it had not happened before. The complainant did not
mention that she had told N of the incident. There were other
unsatisfactory
aspects of the evidence of the state witnesses. An
example is that N testified that she told the complainant’s
mother of
the report made to her by the complainant but the mother
did not mention this.
[13]
In the light of all of these, it must be
assessed whether the requisite standard of proof was met by the
state. Unfortunately, the
conduct of the trial leaves much to be
desired. None of these potential difficulties was dealt with in
cross-examination or questions
by the trial court. One is keenly
aware that, when young children testify, particularly in a matter
such as this, it is a priority
to minimise the trauma of their having
to testify. This is why the Act makes allowance for intermediaries
under
s 170A.
Indeed, in matters such as this it is common
knowledge that rape survivors of all ages often experience the trial
as another violation.
A trial court is therefore placed in a
quandary. The rape survivor must be protected to the greatest extent
possible. If the scourge
of rape in our society is to be addressed,
sufficient evidence must be led, if available, to obtain a
conviction. If sufficient
evidence is to be led to sustain a
conviction, at least some emotional trauma on the part of a rape
survivor is probably unavoidable.
[14]
It may be that the practitioners concerned
and the learned magistrate were alive to the vulnerability of the
complainant and that
this was at least part of the reason why the
issues mentioned above were not properly explored. However, it is not
even clear that
the two counsel and the learned magistrate were aware
of the issues mentioned above. I would also have expected the learned
magistrate
to deal pertinently with some of them in her judgment.
This was unfortunately not done. I am therefore obliged to conduct
that
exercise.
[15]
Did the lack of evidence by the other
witnesses of any mention of the five occurrences give rise to an
inconsistency in the evidence
of the complainant? This is not
necessarily so. It depends on what precisely was said. Without it
having been explored, the inference
of inconsistency cannot be drawn.
A very brief account was given of what the complainant told them. Of
course, only evidence of
the first report is admissible in support of
the state case. Any other reports can only be used to show
inconsistencies. The next
matter is the initial identification of the
8 year old boy. It was only when the police came that the
complainant, in great emotional
anguish, identified the appellant as
her assailant. This, too, does not detract from the acceptability of
the evidence of the complainant.
If anything, it is entirely
consistent with her fear, induced by the threat of her assailant,
that he would kill her if she told
her mother. What then, of the
evidence of N that the complainant told her and that she told the
complainant’s mother? Whilst
it is unsatisfactory that this was
not explored, it does not negate her testimony. She corroborated the
complainant that the appellant
gave her money to buy sweets on the
day in question and took the complainant with him. She also
corroborated the evidence that
the appellant used to ask the children
to sing for him at his home and then gave them fruit. This evidence
could not have been
rehearsed and, after initially denying it, was
ultimately confirmed by the appellant himself.
[16]
As regards whether it was the first time
that the appellant had done this to the complainant, this was not
properly explored with
the complainant or the mother. The time frames
are somewhat unclear in that there is no evidence of when the July
school holidays
began or evidence from the complainant’s mother
to match that of the doctor that the school called her in before the
end
of term to discuss the change in behaviour of the complainant.
This does not detract from the state case but could indeed have made
it stronger. The precise date of the occurrence is not crucial. When
the complainant was asked about this, she was asked by a leading
question whether she remembered playing with her friends during July
2012. The precise time and date may have achieved more significance
if the appellant had raised a specific alibi concerning a specific
date but this was not done. Many of the ambiguities arise from
the
evidence of N who was 8 years old at the time of the incident. One
cannot expect crystal clear evidence concerning dates and
the like
from someone of that age.
[17]
What is abundantly clear from the evidence
is that the complainant was raped around July 2012. The medical
evidence is consistent
with it, the description of the complainant of
what was done to her, her changed behaviour at school and her fear
and tearfulness
when confronted by her mother and the police and when
being examined by the doctor cumulatively prove this beyond
reasonable doubt.
Once this is clear, the question is whether there
is sufficient evidence to prove beyond a reasonable doubt that the
appellant
was the rapist. The evidence all points in that direction.
The evidence of the complainant was given in a straightforward
fashion.
The trial court was impressed with her as a witness. Her
mother did not attempt to disguise the conflict with the family of
the
appellant but was also not challenged when she testified that she
had trusted the appellant as the pastor of her church. In addition,
the evidence of the complainant and N, initially denied but
subsequently confirmed by the appellant, that he would ask them to
his home to sing and thereafter treat them with fruit shows that the
children would not have a motive to falsely accuse him. The
mendacity
of the appellant provides the finishing touch.
[18]
I am therefore satisfied that the state
proved beyond reasonable doubt that the complainant was raped and
that the person who did
so is the appellant. It is therefore my view
that, even though it failed to address the issues mentioned above,
the trial court
did not misdirect itself in its factual findings. It
correctly found the appellant guilty as charged.
[19]
As regards sentence, the offence attracted
a minimum sentence of life imprisonment in terms of
s 51(1)
of
the
Criminal Law Amendment Act 105 of 1997
read with
part I
of
Schedule 2. This can only be departed from if substantial and
compelling circumstances, as envisaged in
s 51(3)
warrant it.
The learned magistrate found that such circumstances existed,
primarily due to the appellant being a first offender
and 60 years of
age, rendering it disproportionate to impose a sentence of life
imprisonment. Although leave to appeal against
the sentence was
granted, the appellant submitted that the sentence was not harsh in
the circumstances of the matter. Taking into
account the usual triad
of factors, which is the appropriate approach to adopt once a court
has concluded that it may deviate from
the prescribed minimum
sentence, I can find no misdirections in the approach of the trial
court. The sentence is also certainly
not startlingly inappropriate.
As a result, there is no basis on which we, as an appeal court, can
interfere.
In the
result the appeal is dismissed and the conviction and sentence are
confirmed.
GORVEN
J
D
PILLAY J
DATE
OF HEARING: 9 February 2016
DATE
OF JUDGMENT: 11 February 2016
FOR THE APPELLANT: EX Sindane, instructed by the
Pietermaritzburg Justice Centre
FOR
THE RESPONDENT: IP Cooke, instructed by the Director of Public
Prosecutions, Pietermaritzburg, KwaZulu-Natal.
[1]
Per De Villiers JP in
R
v Mokoena
1932 OPD
79
at 80.
[2]
S v Sauls & others
1981 (3) SA 172
(A) at
180E-G.