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[2016] ZAKZPHC 19
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Vundla v S (AR460/2015) [2016] ZAKZPHC 19 (23 February 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO: AR460/2015
In the matter
between:
JABU
VUNDLA
APPELLANT
and
THE STATE
RESPONDENT
Coram
: Koen et Seegobin JJ
Heard
: 18 February 2016
Delivered
: 23 February 2016
ORDER
On appeal
from the Regional Court, Madadeni, sitting as a court of first
instance):
The
appeal against conviction and sentence is dismissed.
JUDGMENT
SEEGOBIN J
(Koen J concurring):
[1] This is
an appeal against conviction and sentence. The appellant was
arraigned in the Regional Court, Madadeni, on a charge
of rape.
The charge sheet alleged that the incident occurred on 20 December
2008 at Madadeni. The offence in question
had to be read
subject to the relevant provisions of the (Criminal Law Sexual
Offences and Related Matters) Amendment Act 32 of
2007 as well as
with the provisions of s51 and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
. The complainant was ten years old at
the time of the incident. By the time the matter was finally
heard in August
2014, she was 16 years old.
[2] The
appellant, who was legally represented, pleaded not guilty to the
charge. His defence was a bare denial. The
State case
rested on the evidence of the complainant, her guardian Mrs
Cynthia
Khubeka
with whom she resided at the time as well as the doctor
who examined her on the day in question and who completed the medical
report.
The appellant testified in his defence but called no
witnesses. At the conclusion of all the evidence in September
2014,
the appellant was duly convicted. He was sentenced to 16
years imprisonment. The present appeal is with leave of the
court
a quo
.
[3] As far as
the conviction is concerned the essential issue is whether the State
had proved the guilt of the appellant beyond
a reasonable doubt.
An issue which confronted the trial court was whether the medical
evidence went so far as to establish
that the young complainant was
in fact sexually assaulted on the occasion in question. This
evidence was given by Dr
Mbhele
. There was no dispute
that he examined the complainant at about 19h30 on the day in
question at the Madadeni Hospital.
While he found that there
was redness on the para-urethral folds of the complainant’
vagina, he nevertheless recorded in
the J88 medical form that his
findings could not confirm a sexual assault. When Dr Mbhele
testified, however, he was at pains
to explain that due to his
inexperience at the time he did not think that the redness he found
could be associated with any sexual
assault. However,
with the benefit of hindsight and the experience he gained over the
years in Obstetrics and Gynecology,
it was clear to him that the
symptoms he found on the complainant at the time were caused as a
result of a sexual assault.
He readily conceded that his prior
finding was a mistake on his part. He explained that the
redness found on her para-urethral
folds had progressed onto her
labia majora
and
labia minora
. This could only
have been caused by some friction which was consistent with a sexual
assault. He depicted his findings
in this regard on the sketch
which accompanied the J88 medical report, Exhibit “C”.
It is clear from the judgment
that Dr Mbhele made a favourable
impression on the court which accepted his explanation regarding the
mistake he made, without
reservation.
[4] As far as
the incident itself is concerned, the complainant’s evidence
was clear and straightforward. It is common cause
that she and the
appellant are well known to each other as Mrs
Khubeka
’s
sister is married in the accused’s family. The complainant
visited the accused’s home on occasions when she
went to see
her aunt. Throughout her evidence the complainant referred to
the appellant as ‘Uncle
Jabu
’.
[5] The
complainant testified that sometime during the morning of 20 December
2008, she and two of her friends went out delivering
invitations for
a wedding that was due to take place. On their way back the
appellant, who was standing in his yard, called
her to fetch a jersey
and scarf which he said belonged to her mother. Since her
friends did not wish to accompany her into
the yard, she went in by
herself.
[6] She
entered the dining room and stood at the door. The appellant
picked up a jersey and scarf which were lying on a sofa.
He
walked towards the toilet but ended up sitting on a trunk in the
passage. He then asked the complainant to come and sit
on his
lap. The complainant could not recall whether or not she sat on
his lap at that stage. She remembered, however,
that the
appellant paid her a compliment about her hairstyle. The
appellant thereafter took the jersey and scarf and proceeded
into the
bedroom. In the bedroom he again requested the
complainant to sit on his lap. He then started kissing
her on
her neck. He thereafter requested her to remove her panty but
she refused. The appellant pulled her closer to
him and removed
her panty and skirt. It was at that stage that he heard someone
referred to as Uncle
George
whistling outside.
[7] The
appellant then left the room closing the door behind him. She
could hear him asking George where he was going to.
She heard
George saying that he was on his way to Canaan and he left. The
appellant returned to the room. He placed
the complainant on
the bed and started inserting his finger into her vagina. The
complainant started crying telling him that
she wanted to go home.
It was then that the appellant told her to face the wall and bend
down. He then proceeded to
insert his penis into her vagina
from behind. When he finished he got dressed. He gave her
fifty cents and told her
not to tell anyone. She testified that
when he inserted his penis into her it was painful. She further
testified that
when she put on her panty she felt that she was wet.
In all this time she was crying.
[8] When the
complainant got home, her aunt, Mrs Khubeka, asked her why she was
crying. The complainant told her immediately
that Uncle Jabu
had raped her. Shortly thereafter Mrs Khubeka took her to the
police station where a report was made.
That very day she was
examined by Dr Mbhele at the Madadeni Hospital. She vehemently denied
a suggestion put to her on behalf of
the appellant that he had sent
her to the shop to buy him some cigarettes and that she had lost his
money. It was suggested
to her that she was implicating the
appellant because he had scolded her.
[9] Mrs
Khubeka confirmed that the complainant was out on the day in question
delivering wedding invitations with some of her friends.
At
some stage the other children returned without the complainant.
When Mrs Khubeka asked them about the complainant’s
whereabouts, she was informed that Uncle Jabu had called the
complainant. At that stage Mrs Khubeka did not seem to be too
concerned because the appellant was a relative. However, things
changed when the complainant returned. She noticed
that the
complainant had been crying. When Mrs Khubeka asked her why she
was crying, the complainant informed her that she
had been raped by
Uncle Jabu.
[10] On
hearing this Mrs Khubeka immediately took the complainant and
proceeded to the appellant’s home but when she got there
they
found the house locked. Mrs Khubeka thereafter met Constable
Mabaso
who resided in the area. She made a report to him
concerning the complainant’s allegations. Constable
Mabaso suggested
that the matter be reported at the police station.
On the way to the police station they met the appellant and when they
confronted him with the allegation, he simply denied it.
Strangely, however, the appellant boarded the same taxi in which
they
were and proceeded to the police station with them. Once the
complaint was made at the police station the appellant
was arrested.
Mrs Khubeka confirmed that the complainant was examined later that
day at the hospital.
[11] In his
defence the appellant denied that he raped the complainant. He
denied ever calling her into his house. However,
he admitted
that he complimented her on her hairstyle. He averred that he
requested the complainant to go and buy him some
cigarettes at the
shop. He gave her about R4,50 for this. The complainant
took her time returning and when she finally
did, she reported that
she had lost his money. She returned with 50 cents only.
He then scolded her and she started
crying. He maintained that
he told her to keep the 50 cents as it served no purpose to him.
He further maintained that
the reason why she was implicating him in
this offence is because he had scolded her.
[12] In a
carefully considered and well-reasoned judgment the learned
magistrate concluded that the appellant’s version could
not be
believed and that he was making up a version as he went along.
The learned magistrate was mindful of the fact that
he was dealing
with a young complainant who was a single witness to the offence in
question. He was also mindful of the fact
that her evidence had
to be approached with the requisite degree of caution.
[13] On the
evidence the learned magistrate found, correctly in my view, that the
guilt of the appellant was proved beyond a reasonable
doubt.
The appellant’s version that he had sent the young complainant
to buy cigarettes for him and that she had lost
his money, was
correctly rejected as being false. The appellant had to explain
why the complainant had the sum of 50 cents
in her possession when
she reported the rape incident to her aunt. He sought to
explain this by saying that he told her to
keep the 50 cents which
she brought back after losing the rest of his money. On the
complainant’s version which was
accepted by the trial court,
the 50 cents given by the appellant to the complainant was to buy her
silence. As far as the
complainant’s version regarding
the jersey and scarf is concerned, it is clear that the appellant
used this as a ruse to
get the complainant into his house. As
Mrs Khubeka confirmed, no such items had been left at the appellant’s
house
by her sister and this was all just a ploy on the part of the
appellant. All in all, the appellant’s version was highly
improbable and was correctly rejected as being false. It
follows, in my view, that the appeal against conviction cannot
succeed.
[14] On the
issue of sentence, there is nothing in the reasoning of the learned
magistrate to suggest that he misdirected himself
in any way or that
he exercised his discretion incorrectly. The sentence imposed
is neither unduly harsh nor shockingly inappropriate.
In my
view, the appellant can consider himself fortunate that he did not
get a higher sentence. On this aspect as well, the
appeal must
fail.
ORDER
[15] The
order I make is the following:
The
appeal against conviction and sentence is dismissed.
_______________
_______________
I agree
KOEN J
Date of
Hearing
:
18 February 2016
Date of
Judgment
:
23 February 2016
Counsel for
Appellant :
EX Sindane
Instructed
by
:
Justice Centre, Pietermaritzburg
Counsel for
Respondent :
Z
Dyazi
Instructed
by
:
The Director of Public Prosecutions, Pietermaritzburg