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[2016] ZAKZPHC 40
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Phuthini v S (AR287/15) [2016] ZAKZPHC 40 (12 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
In
the High Court of South Africa
KwaZulu-Natal
Division, Pietermaritzburg
Case
No : AR287/15
DATE:
12 MAY 2016
In
the matter between :
Malindela
Sarefilchus
Phuthini
................................................................................................
Appellant
And
The
State
.................................................................................................................................
Respondent
Judgment
Lopes
J
[1]
The appellant in this matter was charged with the abduction and rape
of the complainant. He pleaded not guilty to both
counts.
On the 7
th
January 2015 he was acquitted on the count of abduction, but
convicted on the count of rape. He was sentenced to undergo
eight years imprisonment. The appellant’s application for
leave to appeal against conviction was refused by the learned
magistrate on the 22
nd
May 2015. On the 23
rd
June 2015 leave to appeal against his conviction was granted on
petition to this court.
[2]
The complainant testified that on the day in question she was at home
with her sister with whom she lived. The complainant
was doing
her homework together with a friend, [L……]. When
he left, she walked with him out of the gate of
their home.
This was at approximately 7.30pm and it was getting dark.
Whilst doing so the complainant saw a white Venture
motor vehicle
near her home and when she asked whose vehicle it was, [L……]
told her that she should not worry about
the motor vehicle, but just
walk with him and she would turn back at some point. As they
were passing the vehicle [L…….]
got into the motor
vehicle and the appellant alighted from it and grabbed the
complainant, lifted her, and placed her inside the
motor vehicle,
telling her that he wanted to marry her. She replied that he
was too old and that she still wanted to complete
her schooling.
Also in the motor vehicle with them was the brother of [L……],
one [N……].
[3]
The complainant testified that the appellant then drove off with her
in the motor vehicle. When the complainant took out
her
cellphone to send a message to her sister, it was taken from her by
[L……] who gave the phone to the appellant.
When
the appellant stopped at Mjuqu in order to attend to some matter, the
complainant tried to jump out of the vehicle but was
pushed back into
it by [L……]. The doors of the motor vehicle were
then locked by the appellant using central
locking.
[4]
They then drove on to the home of the appellant who lifted her out of
the motor vehicle and put her inside a room. A television
was
playing loudly and he offered her a cooldrink. Whilst
continuing to tell her that he wanted to marry her, the appellant
then grabbed her and took her to his bedroom where he threw her on
the bed, undressed her, undressed himself and then had intercourse
with her. When the appellant had finished with the complainant,
he told her that if she were to tell anybody about what had
happened
he would shoot her. He thereafter returned her to her home
between 3 and 4am in the morning.
[5]
The complainant testified that when she returned home that morning,
she only told her sister [A….] that she had been
taken against
her will by the appellant to his home, but she did not tell her that
she had been raped. The complainant told
the court that she
felt unwell for the next week. At some later stage, one of her
sisters suggested that there was a problem
with her. Her sister
suggested that the complainant should go and see a woman nearby who
is related to them, and who usually
carried out inspections of girls,
to confirm their virginity. The complainant said that she could
not go and do that, telling
her aunt that something had happened to
her.
[6]
At that stage the complainant’s aunt approached the
complainant’s uncles and told them what had been reported to
her. They then severely assaulted the complainant because she
had not told them earlier about what had happened to her.
They
insisted that the matter be reported to the police, which they did.
After the matter was reported to the police, they
took the
complainant to a doctor where she was examined. The complainant
was also, apparently, sent to the hospital because
of the injuries
she had sustained when she was assaulted by the uncles. Her arm
was placed in a plaster cast.
[7]
Under cross-examination the complainant confirmed that she had been
assaulted by [L……] [M……] and
[W……]
[M…..], her uncles. During the assault they asked her
who had taken her virginity, and at first
she would not tell them.
They assaulted her so severely that the sticks they were using to
assault her broke. A sjambok
was eventually produced to
continue the assault, and at that stage the complainant told them
that the appellant had had intercourse
with her. She said she
did not tell them previously because of the threat made by the
appellant to shoot her. Her uncles
then took her to the home of
the appellant intending to leave her there in her injured state.
[8]
It was also put to the complainant in cross-examination that the
morning after she had allegedly been raped, she had gone to
the river
with her sister [A…..] in order to do some washing.
Whilst they were there, [N…..] had passed
by and spoken
to her. The complainant denied that she had asked [N……]
to borrow a DVD player from the appellant
because hers had broken
down.
[9]
In cross-examination the complainant also stated that the appellant’s
home consisted of three structures, a rondavel,
a six-cornered hut
and a main house, and that she had been raped in the main house.
It was suggested to her that at the time
the main house was not
completely built, but she alleged that it did have doors and windows
at the time.
[10]
It was also suggested to the complainant in cross-examination that
the appellant could not have used central locking because
the motor
vehicle which was a 1997 Toyota Venture, did not have such a
feature. It was also put to her that after she had
been dropped
off, the appellant returned to his home, fetching [N……]
on the way, and the two of them had slept in
the six-cornered hut
because the house was not yet complete. They had done so
because they intended to perform some repairs
the next morning on a
BMW motor vehicle owned by the appellant.
[11]
The complainant told the court that when the white Venture had
stopped at the area called Mjuqu, she had wanted to urinate
and had
left the vehicle in order to do so. However, [L….] had
guarded her to ensure that she did not run away.
This was not
mentioned in her evidence-in-chief. She denied that she had
left the motor vehicle on her own and returned voluntarily.
She
also denied that [L……] had come to her home
specifically to call her on behalf of the appellant. The
complainant
also denied having telephoned the appellant who then
became interested in seeing her.
[12]
The complainant also told the court that when her cellphone was taken
away from her by [L……], it was given to
[N……].
It was suggested to her that she had given [N…..] the
cellphone. He had used it to
download music from her
phone onto his, and the complainant simply said that she did not know
because she was sending a ‘Please
call me’ to her sister
when [L…..] took her cellphone. It was then put to the
complainant that [N…] had
borrowed the cellphone and it had
not been taken by [L….] from her.
[13]
The complainant was asked in cross-examination whether she had ever
gone to the appellant’s homestead after her family
members had
assaulted her and left her at the appellant’s homestead.
She denied that she had done so. She
disputed when it was put
to her that she had gone there on New Year’s Day looking for
something to drink. The complainant
also denied having borrowed
CDs from the appellant after the incident.
[14]
[A…..] [M….] testified that she was the half-sister and
de facto guardian of the complainant who resided with
her. She
confirmed that prior to the incident, the appellant had had a
relationship with one of her aunts, and the complainant
knew about
this. She told the court that on the day in question [L…..]
had arrived at their home and asked the complainant
to accompany
him. It was already starting to get dark at that stage.
It was not normal that the complainant would go
off with [L……]
when he visited them, but she was not concerned. When the
complainant did not return, [A…..]
had her supper and went to
bed. At about 4am she saw car lights and the complainant
knocked on the door. [A……]
opened the door for
her and they went to sleep. When they awoke the next morning
the complainant did not say anything to
her until later, when she
told [A…..] that the appellant had lifted her into the motor
vehicle and driven away. [A……]
told the court
that the complainant said that [L…..] and [N…..] had
taken her phone away when she tried to call [A…..].
They
in turn gave the phone to the appellant. The complainant had
said that [L…..] and [N…..] alighted from
the vehicle
at a later stage, but when the complainant tried to do so they
stopped her and locked the door. The appellant
had then taken
her to his home. She did not explain what the appellant did to
her and [A…..] did not ask her.
[15]
[A…..] then testified that a few days later the appellant had
disappeared again and told [A…..] that she had
been called by
the appellant. [A…..] confirmed that the complainant had
been severely assaulted by her brothers or
uncles although she had
not been present when that happened. The complainant had
eventually told her aunt what had happened
to her. The uncles,
together with [A…] and the complainant and one other aunt from
the family, had then proceeded
to the appellant’s home. At
the appellant’s home, the appellant told the others not to
enter his homestead
asking what they wanted. When they
explained, he said he did not damage any child. They said to
the appellant that
they wanted to find out whether he had slept with
the complainant, because she was a child. The appellant said
that he had
slept with her, and that the complainant was not a child
when he did so. The appellant accused them of wanting to become
rich through him. They then proceeded to Umzimkhulu to the
social workers, and thereafter to the police station.
[16]
In cross-examination [A…..] stated that the complainant had
returned back home in the morning on the second occasion
when she had
gone to see the appellant. She confirmed that the complainant
was present when the appellant had admitted at
his home that he had
had sexual intercourse with her, but that the complainant was not a
virgin. [A……] said
that the complainant had said
that she was a virgin when she had slept with him the first time.
[17]
[A…….] expressed surprise that the complainant had not
testified about the appellant’s confession that
he had slept
with her, and also that the complainant had failed to tell the court
about the second occasion when she went to see
the appellant.
[18]
When [A……] was asked why she had simply sat back and
done nothing when the complainant told her she had been
abducted by
the appellant, [A……] curiously stated that the
complainant had started this and she was supposed to finish
it.
[A….] also confirmed that after the first incident, she had
been at the river with the complainant when [N…..]
arrived.
He and the complainant had spoken about a DVD. [A…….]
also admitted in cross-examination that
the complainant had
disappeared overnight on two occasions and had not given any
explanation for the second occasion. [A….]
had not
questioned her about it. The complainant had, however, stated
that the appellant had taken her away on two occasions.
She
said this when she was explaining to her uncles what had happened.
[A…..] also stated that she did not know how
the
complainant had gone to the home of the appellant on the second
occasion.
[19]
The appellant testified that on what has been described as the first
occasion, he had been telephoned by the complainant who
asked him
where he was going because she had heard the sound of his motor
vehicle. He had then sent [L….] to go and
call her
because he wanted to see her. He confirmed that [N…..]
was with him in the car when she arrived. [L…..]
climbed
into his motor vehicle. The appellant had got out of his motor
vehicle and had spoken to the complainant, asking
her if she knew
him. He told her he was in a hurry because he was going to
Mjuqu and when he returned to his motor vehicle
and started it he
could hear that she was saying something from outside the motor
vehicle. The appellant then asked [N……]
to roll
down the window and the complainant said she wanted to accompany
them. She opened the vehicle, climbed into the back
and they
left. They then went to [L…..] where the appellant
wanted to obtain some motor vehicle parts. The complainant
remained in the vehicle with [L……]. He denied
that [L…..] took her cellphone and gave it to him.
He
then dropped [L…..] and [N…..] off at a bus stop called
[K……]. He denied that he had ever
tried to lock
the vehicle and stated that there was no central locking in his
vehicle. At the bus stop where he had dropped
off [L……]
and [N……] he chatted to the complainant. She
eventually alighted. The appellant
had then driven off and
fetched [N……] and gone to his home where they had
slept. He testified that the complainant
did not go to his
homestead. He and [N….] had slept in the six-cornered
structure at his homestead because the main
house was still being
built and it had no doors and windows. The next morning they
awoke and worked on his BMW motor vehicle.
[20]
The appellant testified that approximately three months after the
complainant had been in his vehicle, he returned home to
find the
appellant at his home, having been assaulted. She had been
driven to his home by her sister [A…..] and three
other family
members. He found the complainant lying on his verandah.
She said she had been assaulted because she had
slept with him, and
also told him that she had said that she had slept with him because
she was forced to do so. The appellant
went to his gate and
spoke to [A…..] and the three family members. They told
him that they had assaulted the complainant
because she had slept
with him. The appellant said that he denied having slept with
the complainant. According to the
appellant, [A……]
and the others had then questioned the complainant as to who she had
slept with, but she remained
quiet. One of the uncles then
wanted to come and assault her and he was stopped by the appellant.
The appellant testified
that he was arrested shortly thereafter.
[21]
In cross-examination the appellant also stated that he had realised,
at the point when he was talking to the complainant alone
with her in
the car, that she was the niece of woman with whom he had had a
relationship. For that reason he had not pursued
the matter of
wooing her.
[22]
[N…..] [M…..] testified on behalf of the appellant.
[N…..] told the court that on the night in question
he had
been with the appellant and [L….], and they had gone to a
place near the home of the complainant. [L…….]
had gone to call the complainant and returned with her. When
she was standing near the vehicle the appellant alighted from
the
vehicle and spoke to her. The appellant then returned to the
vehicle and the complainant was standing outside of it.
[N……]
then opened his window and the complainant said that she wanted to
accompany them. She opened the door
and boarded the vehicle.
They drove to near [N….’s] uncle’s homestead and
the appellant alighted from
the vehicle. [N…….]
asked if he could use the complainant’s phone to download or
play some music.
The complainant then left the vehicle to go
and urinate and returned thereafter. The appellant returned and
they drove off
until they reached the [K…….] bus stop.
[L…..] and [N…..] alighted from the vehicle and left
the appellant and the complainant in the vehicle. [N……]
was later phoned by the appellant who fetched him and
they went to
the appellant’s homestead where they slept the night. He
testified that they had slept in the six-cornered
hut until morning,
and then repaired the motor vehicle. He had gone home and
thereafter went to look for cattle. When
returning from looking
for the cattle he had passed a river where he saw the complainant and
[A…..]. He had spoken
to them and the complainant asked
him to borrow a DVD player from the appellant because theirs was
broken.
[23]
[N…..] told the court that he was present with the appellant
when the complainant had phoned the appellant, and the
appellant had
later told him that the complainant had got his number from her
aunt’s phone. The complainant’s
aunt had been in a
love relationship with the appellant. [N…..] testified
in cross-examination that whilst in the
motor vehicle, he had asked
the complainant for her phone and she had given it to him to transfer
some music from it to his phone.
[N……] denied
that the appellant had told him to open the window which he had done
in order to listen to what the
complainant was saying prior to her
boarding the motor vehicle. [N…..] also told the court
that he was present when
the complainant’s relatives accused
the appellant of deflowering her. At that stage the complainant
was standing there
crying and she was bleeding from her head.
[24]
In considering whether it is safe to rely upon the conviction of the
appellant in the court
a quo
, the complainant’s evidence
falls to be considered in some detail :
(a)
The complainant gave the impression that
she had been ‘seeing [L…….] off’ when she
was abducted.
This was after they had been working together.
[A……..] contradicted this and gave the impression that
[L….]
had come to fetch her.
(b)
The complaint testified that she had told
[A….] on the morning after the incident that she had been
taken by force to the
home of the appellant. It is curious that
in those circumstances she did not relate to [A……] that
she had been
raped. Her reason for doing so was apparently that
the appellant had said that he would shoot her if she did so.
However,
she had already disclosed to [A…..] a serious offence
on the part of the appellant – i.e. abducting her. There
was then no reason for her not to disclose to her sister the other
serious offence – the attack on her
(c)
The complainant only revealed to her aunt
about the fact that she was no longer a virgin when it was suggested
that the complainant
should be tested by the lady who did the
virginity testing. The complainant obviously knew at that stage
that she could no
longer conceal the fact that she was no longer a
virgin. Inevitably then the question of who had had intercourse
with her
would have been raised. It was only after the
complainant was severely assaulted that she accused the appellant of
having
raped her. She had at first refused to disclose the
identity of the person with whom she had had sex.
(d)
The complainant did not disclose in her
evidence that she had gone to the home of the appellant on a second
occasion. This
emerged in the evidence of her sister, [A……],
who did not query the fact that the complainant had spent the night
out. [A……] also said that the complainant had
confirmed this when she spoke to her uncles at the home of the
appellant, when they had all gone there to confront the appellant.
(e)
The complainant did not testify that the
appellant had admitted having sex with her on the occasion when the
appellant had been
confronted at his home by the complainant’s
relatives.
(f)
As was submitted by Mr
Matthews
who appeared for the appellant, the medical evidence, although
disclosing a ruptured hymen, does not give any indication as to
when
that occurred. As the complainant was only taken to see the
doctor some weeks after the incident, the gynaecological
evidence is
of assistance only in indicating that the complainant was no longer a
virgin.
(g)
As was submitted by Ms
Moosa
who appeared for the State, the circumstances in which the offence
was disclosed were unusual and unfortunate. In
cross-examination
[A…..] confirmed that the complainant had in
fact told an aunt or another sister the identity of the appellant as
the person
who had sexual intercourse with her. The evidence of
[A…..] was therefore not that of a person to whom a first
report
of rape had been made. Her evidence is useful only
insofar as it relates to the alleged confession made by the appellant
at his home when confronted by the complainant’s family.
It is significant, however, that this was not confirmed by
the
complainant and none of the other witnesses present were called to
confirm this fact. I agree with the submission of
Ms
Moosa
that it was unfortunate that neither the doctor nor [L……]
were called by the learned magistrate. They both
could have
contributed meaningfully to the evidence, and the failure to call
them in my view damages the State case.
(h)
Ms
Moosa
also submitted, correctly in my view, that when the second visit to
the appellant was testified to by Avela (who in fact said that
the
complainant explained to her that she had been called by the
appellant), the learned magistrate should have re-called the
complainant in order to deal with this evidence.
(i)
There is also confirmation of part of the
defence version inasmuch as [A…..] testified that after the
incident she and the
complainant had been at the river when they were
approached by [N…..]. Although the complainant denies
the actual
content of the discussion between her and [N……],
to which [A……] paid no real attention, the
circumstances
of that meeting are surprising, coming as it did, so
shortly after the alleged rape. One would have expected Avela
to have
confronted [N……] about his part in her
abduction if the complainant had told [A…..] what was
testified to
in evidence by them. Clearly she did not. In
addition the complainant did not confront [N…..] with the fact
that he had assisted in helping her to be abducted by the appellant.
It is also significant that although [N…..] testified
that
that meeting occurred the next day, this was not disputed by the
prosecutor.
[25]
In all the circumstances it would in my view be unsafe to rely upon
the evidence of the complainant and [A……]
to convict
the appellant of rape. Whilst there are clearly concerns about
what a 37 year old man was doing taking a 13 year
old girl around in
his motor vehicle, the evidence of the rape cannot safely be relied
upon. This is particularly because
of the dreadful conduct of
the complainant’s relatives in assaulting her in order to
ascertain the identity of the person
with whom she had had sexual
intercourse. There is nothing in the record to indicate whether
or not her relatives were charged
with assault, but it is clear from
the evidence of the complainant and [A….] that they should
have been. On a conspectus
of the evidence led by the defence,
the version given by the appellant is reasonably possibly true.
That is not to suggest
for one moment that the complainant did not
have sexual intercourse with some person at some stage. It is
simply not safe
in my view to rely on the evidence in this case in
order to found a conviction of the accused.
[26]
I would accordingly make the following order :
1.
The appeal against conviction succeeds
2.
The conviction and sentence in the Court
a
quo
are set aside.
Balton
J: I agree.
It
is so ordered.
Date
of hearing: 26
th
April 2016
Date
of judgment: 12
th
May 2016
Counsel
for the Appellant: S Matthews
Counsel
for the Respondent: Ms N Moosa
(instructed
by the Director of Public Prosecutions