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[2016] ZAECBHC 13
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S v D and Another (CC55/2016) [2016] ZAECBHC 13; 2017 (1) SACR 268 (ECB) (9 December 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CASE
NO: CC55/2016
In
the matter between:
THE
STATE
vs
M.
D.
Accused
no 1
N.
M.
Accused
no 2
JUDGMENT
MBENENGE
J:
Introduction
[1]
This case is about a ten year old girl, L. M., who allegedly suffered
at the hands of her biological parents who are both facing
sexual
offence related charges.
[2]
On count 1 it is alleged that during the period January 2014 and 3
November 2015, on diverse occasions, at Mdantsane, M. D.
(accused No.
1) unlawfully and intentionally committed an act of sexual
penetration with L. M. (the complainant, otherwise also
referred to
hereinafter as L.) by inserting his genital organ into the genital
organ of the complainant without the complainant’s
consent.
[1]
[3]
On count 2 it is alleged that during the period and at the place
mentioned in count 1 N. M. (accused No. 2) unlawfully and
intentionally aided and/or abetted accused 1 to sexually violate the
complainant by holding the complainant down and closing her
mouth to
enable accused 1 to penetrate the complainant vaginally with his
penis without the consent of the complainant.
[2]
[4]
On count 3 the allegation is that during the period and at the place
referred to in count 1 both accused unlawfully and intentionally
caused the complainant to witness or be in their presence whilst
engaging in a sexual act.
[3]
[5]
The State duly applied that, in the event of a conviction on count 1,
section 5(1)
of the
Criminal Law Amendment Act 105 of 1997
relating
to a minimum sentence of life imprisonment, be of application, in
that the complainant was raped more than once and whilst
being a
person under the age of 16 years old.
[6]
Both accused pleaded not guilty. The pleas they tendered on all
counts were confirmed as being in accordance with the instructions
held by their legal representatives.
State
case
[7]
At all times relevant hereto L. stayed in a single roomed corrugated
iron shack together with her parents (the accused herein)
and her
younger brother (H.).
[8]
She testified, with the aid of an intermediary, to how accused 1
raped her. She estimated the bouts during which she was
raped
at around 50. Accused 1 would climb on top of her whilst she
lay on her back on the bed, and insert his penis into
her vigina and
perform thrusting movements. This would be done with accused 1
having taken off his clothes and hers as well.
This experience
caused pain to her vagina. Before that she never occasioned
such pain. Her mother, accused
2, used to be
present on some occasions when she was being raped, but on the day
when the unbecoming conduct of accused 1 was detected
she had been
away at a drinking place.
[9]
She narrated an incident during which she was raped and on which her
mother inserted a cloth in her mouth. There
were times
when the accused had sex inside the shack, in her presence.
She believed that when her parents had sex they
were aware of
her presence in that she had been watching TV. She had never seen
other persons have sexual intercourse before.
When being
raped by accused 1, accused 2 would do nothing and simply keep mum.
She must have been in grade 1 on the
occasion accused 2 inserted a
cloth in her mouth whilst she (the complainant) was being raped.
That was when her father
started raping her.
[10]
Towards the conclusion of her evidence in chief, L. handed into Court
a letter which she penned for her mother, pleading for
reconciliation
and urging that they let by gones be by gones.
[4]
[11]
Under cross-examination L. said since the incarceration of her
parents she has been staying with her grandmother. Before
the
rape she used to relate well with her father. The relations
soured after he started raping her. Her relationship
with her
mother has been cordial, especially compared to that with her father,
hence she expressed herself the way she did in her
letter. Her
father and mother did not have a healthy relationship. His
father would assault her mother for no apparent
reason. She
sympathized with her mother. She is still fond of and misses
her mother. That does not go for her father.
[12]
She doesn’t know why her mother had put a cloth in her mouth
whilst she was being raped. She was scared of asking
her.
She described her mother as having been a stern disciplinarian.
[13]
If the rape had occurred at night her father would, after raping her,
retire to bed. If it had occurred during day time,
she would go
to play after having been raped. She did not tell her friends,
scared that they might inform their parents of
what had be fallen
her. She also did not tell her teachers at school, fearing that
her mother would get to know of that and
beat her up. Once upon
a time she almost informed her grandmother about the rape, but got a
fright upon noticing her mother
starring at her. As far
as the complainant was concerned her brother did not witness the
rape; he would either be playing
outside or asleep already.
During the period in question accused 1 was unemployed. He
worked during weekends, doing
odd jobs. Her parents
consumed liquor a lot. At times they would be drunk when
engaging in sexual
intercourse.
[14]
She was taken to hospital at some point after she had been raped, and
was examined by a doctor. The relevant medico-legal
report was
handed in as an exhibit in these proceedings.
[15]
L. was also cross examined by accused 2’s legal
representative. The incident when her mother inserted a cloth
in her mouth whilst she was being raped by her father had occurred at
night. Her father had sex with her whilst lying on her
parents’
bed. She had hitherto been lying on her bed. Her father
assaulted her mother even on this occasion,
demanding to have sex
with her (accused 2). He threatened to kill her mother if she
did not allow that to happen. It
was suggested to her that on
the morning following the rape incident her mother had approached her
saying she had done whatever
she did the previous night scarred that
her father would assault her. She denied this as a lie.
[16]
Apropos the charge accusing her parents of causing her to witnesses
them having sex she said her parents had been aware that
she was
awake because she had been watching TV. She however did not
rule out the possibility of her parents thinking she
was asleep when
in fact she had been awake.
[17]
On another occasion her father had arrived back home and kissed her.
When she remonstrated with him about this,
he closed the door,
inserted a cloth in her mouth, lifted up her dress, took off his
clothes and caused her to lie on the bed and
had sex with her.
They then heard the sound of someone playing music and walking
towards the shack. The accused
removed the cloth from her mouth
and moved away from her. The person that had been approaching
the shack turned out to have
been her maternal uncle, who was in the
company of her mother. Her uncle asked what had been taking
place there. She
then told her uncle that the accused had
threatened to kill her if she divulged what had happened. Her
mother slapped accused
1, asking why he had sex with her child, but
accused 1 did not respond. Her uncle eventually reported the
matter to the police.
[18]
S. M., the complainant’s maternal uncle, also testified.
Accused 2 is his cousin. On 3 November 2015 at about
half past
one he was at a tavern at Mdantsane. Both accused were
also at the tavern. He observed that accused
2 bore some
scars on her face. When he asked her about the scars accused 2
said the scars had been caused by accused 1 who
had assaulted her.
He confronted accused 1 about this. Accused 1 thereupon left the
tavern. At a later stage accused
2 and S. also left the tavern.
When along the way accused 2’s friends saw S. they became
excited, asking where he had
been. He told them he had
been away in Johannesburg. At some point, accused 2 went
to the toilet.
When she was taking long to emerge from the
toilet, S. went to look for her. Accused 2 said she was tired,
and asked S. to
accompany her to her shack. He did. Along
the way S. was playing music from his cellular phone.
[19]
S. said when he got to the shack he saw accused 1 and the complainant
on the bed. He asked why the complainant had not
been to
school. She responded that she was tired. The complainant
jumped out of bed and got out of the shack.
S. followed her.
At that point he overheard a smacking sound. It turned out that
accused 2 was slapping accused 1,
asking why he had been sleeping
with his child. He lifted the complainant’s dress and
observed that she was not wearing
her panty. He asked her
pointing to her private part what accused 1 had done to her in that
part of her body.
She responded that her father had
threatened to kill her if she reported what he had done to her.
[20]
S. became angry. The complainant then eventually reported that
her father “
inserted something in her thing
”. At
that point the complainant was facing downwards, and teary.
S. pulled off the blankets. He thereupon observed
that accused 1’s
trousers had been pulled down to knee level. Accused 1’s
body including his private parts had
been exposed from knee upwards.
When he confronted accused 1 about what the complainant had told her,
accused 1 denied having
done anything to her. S. assaulted
accused 1, and thereafter summoned the police. Some 4 or 5 days
prior to this, S.
had heard from accused 2 that accused 1 had been
sleeping with his child, but he never took her seriously on that
because she had
been drunk.
[21]
Under cross examination S. disputed the suggestion that accused 1 had
not been at the tavern, adding that he even stored pictures
in his
cellullar phone pointing to accused 1’s presence at the tavern
on the day in question. After he had assaulted
accused 1, the
latter drew a knife which he took from underneath the mattress.
He was referred to a statement he made
to the police and
wherein nothing is stated about accused 1 having been found with his
pants down. He said he had told the
police about it and sought
to attribute the oversight to the fact that he had been angry.
Defense
case
[22]
Accused 1 testified in pursuit of his defense. He confirmed
that he and accused 2 had been in a romantic relationship
and that
L., the complainant, is their offspring. They
already occupied the shack when the complainant was born.
They
have been staying with the complainant in their shack since her
birth. He was employed at Spindrift Company, boilermakers
at NU12, Mdantsane.
[23]
He denied having raped or attempted to rape the complainant. He
admitted that there were occasions when he picked up
a quarrel with
accused 2. He would come back home and find her drunk.
She used to swear at her, and he would assault
her. On one
occasion he assaulted accused 2 in the presence of the children.
On other occasions they fought the
children would either be
away playing or asleep. He also denied having had sex
with accused 2 within view of the children.
He used to
first check whether the children were asleep before having sex with
accused 2.
[24]
On 3 November 2015 he proceeded to his place of work at Fort Jackson,
Mdantsane. Upon arrival there some parts needed
for boiler
making had not arrived. The task they were to perform on that
day was deferred to the following day. He
returned home just
after 14:00 where he found the complainant and accused 2. Accused
2 was sober. Whilst they
were chatting, one of accused 1’s
friends arrived and requested him (accused 1) to accompany him to
NU5. He agreed,
and on their arrival at NU5 the friend bought
him a liter of Paarl Perle which they both consumed. When he
eventually got
back home he found the complainant present.
Accused 2 was not there. He asked the complainant where her
mother was.
She told him she was at Sandile’s home. He
took off his shoes and lay in a relaxing position. The
complainant
was at that stage watching TV, sitting on her bed.
Q. and S. arrived, finding out about accused’
s 2
whereabouts.
The complainant told them she had gone to a nearby shack. They
asked where his father was. The complainant
pointed at him.
He had covered himself with a duvet and wore something on his upper
body, whilst lying on his bed.
S. asked why he had closed the
door as if he had been raping the child. He responded that he
found the children watching
TV and that he had not committed any
rape. S. assaulted him. He retaliated by hitting
him with fists. A
fight ensued. He was overpowered and
fell. He thereafter lost consciousness. He came around when in
police custody.
When fighting with S. and Q. he did not see
accused 2.
[25]
During cross examination on behalf of accused 2, accused 1 was asked
how, given accused 2’s handicap, it was possible
for them to
fight each other. He said this would happen when both of them had
been drunk. He even pointed to scars on his
face claiming that
these had been caused through having been hit with empty bottles by
accused 2. He said the fights used
to take place even within
view of their children, when both accused had been drunk.
[26]
It was put to accused 1 that on the occasion when a cloth had been
inserted in the complainant’s mouth he had said he
cannot plant
a cabbage and leave it to others to harvest, which he also denied.
He further denied ever threatening to hit
accused 2 or to kill the
complainant.
[27]
Accused 1 was also cross-examined by the prosecutor. He said
they used to have sex with accused 2 whilst the children
were asleep
in the shack. On the occasions when the TV had been switched on
it was possible that the complainant had seen
them whilst having
sex. He said they did have sex whilst in drunken
state, but on those occasions the children
had not been in the
shack. He further said they did have sex when sober in the
presence of the children. When this
aspect was pressed on
further, he changed his version and said they did not have sexual
intercourse whilst the children were present.
Asked whether
they would have sex when the children were asleep, his answer was in
the affirmative. He said they would take
precautions such as
switching off the lights and TV, and ensuring that the children were
asleep before having sex. He nevertheless
admitted that on
occasions when they were drunk and had sex it was possible that the
children had been watching them. In this regard
he testified as
follows:
“
First
of all, we would be drunk and not notice that the children had
arrived because normally the children would be taken to go
when we
are drunk, but sometimes we could not notice because of being drunk.”
Asked
why it was not put to the complainant that precautionary measures
used to be taken, he said he had not informed his lawyer
about that.
[28]
Accused 2 also testified in her defense. She is disabled in
that she cannot open her hands and turn around her writs;
her knee
caps sometimes pop out, hence she cannot bend and walk properly.
She has been disabled since birth. Accused
1 was responsible
for maintaining the family as his salary was more than the amount she
received as disability grant.
[29]
The relationship she had with accused 1 had initially been sound.
He had a tendency to assault her when drunk or under
the influence of
dagga. He would at times assault her with a stick until the
stick broke. Neighbours or family members
would be summoned and
would come to her rescue. The assault bouts happened more
during weekends. There were occasions
when accused 1 said he
felt like assaulting her surmising that he had committed a wrong.
[30]
Accused 2 does partake of liquor. She narrated her version of
the events of 30 June 2015. She and accused 1 had
arrived back
home and found the children already asleep. They retired for the
night. Accused 1 woke her up in the midst of
the night
expressing a desire to have sex with her. They engaged in a
bout of sex. Thereafter, accused 1 said she cannot
grow a
cabbage and leave it to be harvested by another man. Accused 2
then asked “
are you telling me that you want to sleep with
or have sexual intercourse with your child?
” Accused
1 responded in the affirmative. She refused to wake up the
complainant. He assaulted her–he
throttled her, covering
her with a pillow, persistent that she should wake up the
complainant so that he could do to her
what pleased him, adding that
if what he intended doing got to be known outside of their household,
he would kill her. She
could not fight back because she was
drunk and he overpowered her. She eventually yielded to the
will of accused 1. She woke
the complainant saying her father was
calling her. The complainant obliged and approached her father,
who undressed and raped
her. Whilst raping the complainant
accused 1 instructed accused 2 to insert a cloth in the complainant’s
mouth to prevent
her from screaming and being noisy. She said
she believed, from experience, that accused 1 would carry his threat
towards
her. During December 2012 he had assaulted her.
On that occasion she reported the assault to the police. However, two
days after accused 1 had been arrested and detained, he was released
from custody. She was apprehensive that, even if in
this
instance, if he were to be arrested he might be released and hurt
her.
[31]
The rape of the complainant by accused 1 made her feel hopeless.
She harboured bitterness and could not think of anyone
to whom she
could confide concerning her painful experience. In the morning
accused 1 went to work. She called the
complainant and assured
her that God would work out a plan. She was lame (her
knee swollen) and unable to take her
to the clinic, until her swollen
knee had subsided. She also told the complainant that the
swelling she bore resulted from
an assault by accused 1 when she had
refused to co- operate with him the previous night, whilst he
was bent on having sex
with her (the complainant).
[32]
Once upon a time when she had consumed liquor she, in the presence of
accused 1’s mother and her mother, scolded the
complainant
saying “
this thing that sleeps with her father.
”
She did this because she wanted to unload the burden inside herself.
She also wanted to evoke curiosity on the
part of those who had been
listening, hoping that they might find out more about what had
happened. Accused 2 was asked whether
she knew of instances
when they would have sex being aware that their child was watching
them; she answered this in the negative,
adding that every time they
had sex they would do so verily believing that the children were
asleep. They would take precautions;
switch off the lights and
TV, and ensure that the children were asleep.
[33]
During cross examination conducted on behalf of accused 1, accused 2
said accused 1 started abusing her in 2005. When
she fell
pregnant she hoped that the abuse would eventually come to an end,
but that never came to pass. Accused 1
used to be stern
and cruel when chastising children, hence she took it upon herself to
discipline the children. All family
members were aware of the
abuse. She nevertheless decided to stay in the relationship
because her aspiration was to have
both parents bring up their
children. She had been raised by a single parent and
would have her children not experience
the same. She yielded to
accused 1’s pressure to assist him rape his child because
“
I did not
know what to do, I could not get up, I was locked inside, I was sore
and my only way I know is that he was just going
to kill me.…I
was shocked to see that it was their father who was to do this to the
children. I thought it would be
an outsider that would do
this.”
Accused
1 assaulted her and when she endeavored screaming he would choke and
cover her with a pillow. The shack door had been
locked with a
chain and a padlock.
[34]
Under cross-examination by the prosecutor accused 2 said she saw
accused 1 rape the complainant for the first time on 30 June
2015.
There were times she also assaulted accused 1. She did so in defense;
she would slap him. On the
following day, 31 June,
they (the two accused) were discussing what accused 1 had done the
previous night. Accused 1 said
he did not know what got inside
him. He apologised, saying he would never do that again.
He even bought her medication
for her knee-cap. She gave the
complainant pain tablets, and did not take her to the clinic.
[35]
The issue of why she did not escape when she was allegedly compelled
by the accused to aid him in raping the complainant was
persisted in
during cross examination. She said the door had been shut
with a chain and a padlock, and the keys were
either in accused’s
possession or hidden away by him. The shack did have a window,
but the window had burglar nets.
She said she had informed her
lawyer about this, but could not account for why all this had not
been put to the complainant when
she was testifying. She said
she inserted the cloth in the complainant’s mouth on accused
1’s instructions.
She was asked why this had not been put
to the complainant when she testified. She said she had forgotten to
inform her attorney
about it. She said accused 1 had threatened
to kill her, not right away, but in the event of her informing other
persons
outside of her household of the rape. She conceded that
the rape on the complainant was more serious than the experience she
had previously reported to the police. Even though the police
had informed her to report other more serious cases to them
in future
she never reported the rape.
[36]
On the day she had referred to the complainant as “
the thing
that sleeps with her father
” she had sent the complainant
on an errand, and the complainant had not obliged. She became
angry towards her.
It was suggested that she did not tell
her mother, the neighbours who previously intervened or anybody else
about the rape; she
said she had been ashamed.
[37]
Doctor Mbande was called at the instance of accused 1. He
examined the complainant on 3 November 2015. He completed
and
signed the relevant J88 medico-legal report. According to the
report “
there is no clear evidence of forced sexual
penetration.
” There was redness on the orifice and labia
majora. The redness could have been caused by sexual
penetration which
could not be ruled out as having taken place.
The child appeared to be psychologically deprived or emotionally
depressed.
[38]
Against this background it remains for this court to pronounce on the
guilt or otherwise of the accused.
[39]
It is common cause that the complainant and her younger brother lived
with their parents, the accused, in a single-roomed shack
located in
Mdantsane. At the time of the alleged offence the complainant
had been 9 years old, having been born on 7 August
2006.
Accused 2, the complainant’s mother, is a disability grant
recipient. It was not disputed that she cannot
open her hands
or turn around her wrists; her knee caps pop up and she cannot walk
properly. At all times relevant hereto,
the accused were
lovers, but their relationship was strife stricken. They
quarreled a lot, even within view of their offspring,
and consumed
liquor regularly.
Rape
[40]
In seeking to secure a conviction the State relied heavily on the
testimony of the complainant, which, it was argued, found
support
from the testimony of S., the complainant’s uncle, and, in
part, the testimony of accused 2.
[41]
Even though the complainant would have the court believe that she was
raped by her father approximately 50 times, her testimony
focused on
two occasions on which the rape occurred. The one occasion
testified to by the complainant of which accused 2
made common cause
was that of 30 June 2015 during which, accused 1 was said to have
raped the complainant aided by accused 2.
The complainant also
testified about another rape incident perpetrated by accused 1 during
which her mother had been away at a
drinking place. S. also
testified about this incident, which took place on 3 November 2015.
[42]
In my view, the complainant provided coherent and reliable evidence.
She stood the test of cross-examination. There
is indeed no
basis for even surmising that she had been influenced to incriminate
accused 1. Nothing need be made of the
suggestion made under
cross-examination and persisted in at argument stage that she hates
her father and favors her mother.
As will be pointed out herein
below, in so far as that may be relevant, she incriminated her
mother, dispite having expressed preference
for her.
[43]
On the authority of
S
v Sauls
[5]
even if it were to be contended that L. is a single witness the
testimony of the complainant passes muster. In that case
it was
held:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness …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. It had been said more than once that the
exercise of caution must not be allowed to displace the exercise
of
common sense. The question then is not whether there were flaws
…The question is what weight, if any, must be given
to the
many critism that were voiced …in argument”
[44]
There was an attempt to criticize the complainant for not having
reported the rape. This criticism is devoid of merit.
To
begin with, on the first occasion she was raped in the presence of
her mother, the very person she could have reported to.
The
other rape incident was reported to S., at the earliest available
opportunity.
[45]
In any event, the following remarks of Cameron JA in
S
v Abrahams
[6]
are apposite:
“…
rape
within the family has its own peculiarly reprehensible features, none
of which subordinate it in the scale of abhorrence to
other rapes.
The present case illustrates them with acute force. The rapist
may think the home offers him a safe haven
for his crime, with an
accessible victim, over whom he may feel (as the accused) he can
exercise a proprietary entitlement.
Though not the case here, a
family victim may moreover for reasons of loyalty or necessity feel
she must conceal the crime.
A woman or young girl may further
internalise the guilt or blame associated with the crime, with
lingeringly injurious effects.
This is particularly so when the
victim is the rapist’s own daughter, and the more so when the
daughter is of tender years.”
[46]
The complainant’s version that she was raped did find
corroboration. On the first occasion she was, as already
mentioned, raped in the presence of accused 2. The testimony of
accused 2 on this aspect bears relevance. On the second
occasion, S., whose testimony this court has no reason to disbelieve,
caught accused 1 with his pants down. The testimony of the
complainant, especially in so far as it is consistent with that of
S., is also worthy of belief.
[47]
It is so that S. in his testimony left out certain events concerning
the incident of November 2015 in the police statement
he deposed to.
However, in my view, he satisfactorily explained how that came
about. I would not reject S.’s
entire testimony purely by
reason thereof that he came short in certain respects. He did
explain that at the time he deposed
to the statement he was still
angry. It has been observed that a person making a statement to
a policeman in a highly emotional
state may not be fully attentive to
every word in the statement when it is being read back to him.
[7]
[48]
Accused 1 raised a bare denial defense to having raped the
complainant. In this way he had an easy row to hoe.
In
contrast thereto, the complainant had a traumatic experience to
recount. She stuck to her version and never crumbled even
under
cross-examination. Generally, accused 1 floundered under cross
examination. For his part, he could come
up with no
explanation as to why the complainant, her daughter, would falsely
implicate him. The utterance which he denied
having made
namely, that he cannot plant a cabbage and leave it to others to
reap, fits well in the scheme of things and is consistent
with the
version of the State. Accused 2 was not shown to have lied in
that regard.
[49]
The medical report is neutral, but sexual intercourse was not ruled
out as having taken place.
[50]
I therefore come to conclusion that the State has proven beyond
reasonable doubt that on 30 June 2015 and 03 November 2015
accused 1
had sexual intercourse with the complainant without her consent.
I am satisfied that I can safely reject accused
1’s bare denial
on this aspect of the case as not reasonably possibly true.
Aiding
another person to commit sexual offence
[51]
Let me now proceed to consider whether it has been established with
the requisite degree of proof that accused 2 aided and/or
abetted
accused 1 when he raped the complainant on 30 June 2015.
[52]
According to the complainant, on this fateful day (30 June 2015), her
mother inserted a cloth in her mouth whilst accused 1
raped her.
Accused 2 made common cause of having inserted the cloth in
complainant’s mouth on this occasion, but claimed
to have done
this under compulsion and out of necessity, in circumstances where
her life or bodily integrity had been threatened
by accused1.
[53]
The defense of necessity relied on by accused 2 is said to arise
when, confronted with the choice between suffering some evil
and
breaking the letter of the law in order to avoid it, the accused
chooses the latter alternative. The term ‘
necessity
’
is used here to cover this dilemma situation when it is brought about
by the force of surrounding circumstances or by human
agency
(compulsion, duress and coercion) since the law is the same in both
instances.
[8]
[54]
It is trite law that for an act to be justified on the ground of
necessity, the following requirements should be established:
(a)
a legal interest of the accused must have been endangered;
(b)
there must be a threat to the interest which had commenced or was
imminent;
(c)
the threat must not have been caused by the accused’s fault;
(d)
it must have been necessary for the accused to avert the danger; and
(e)
the means used for averting the danger must have been reasonable
[9]
in the circumstances.
[10]
[56]
It needs to be stressed that whilst the above are requirements for
necessity as a justification, the onus of proof of the commission
of
the offence continues to rest upon the State. Whether an
acquittal is justified (or guilt of the accused has been proven
beyond a reasonable doubt) will depend on the particular
circumstances of each case and the whole factual matrix will have to
be carefully examined and adjudicated upon with the greatest
care.
[11]
[57]
In a consideration of the factual matrix it should be borne in mind
that it is incumbent on a party (including an accused)
to put to each
opposing witness so much of his or her own case or defense as
concerns that witness and to inform such witness that
other witnesses
will contradict him or her so as to give such witness fair warning
and an opportunity to explain the contradiction.
[12]
[58]
The complainant testified that she did not know why her mother
inserted a cloth in her mouth when, on the relevant occasion,
she was
being raped by accused 1. She was scared of asking her mother
why she had done this. Whilst admitting that her mother
feared her
father, she denied that her mother had spoken to her on the following
morning claiming to have inserted the cloth in
her mouth because she
was being assaulted and threatened by accused 1. Her response was
“
[i]n fact I do not know because she never talked to me she
tells lies”
(sic). No suggestion was made when the
complainant was being cross examined on behalf of accused 2 that
accused 2 had inserted
the cloth in the complainant’s mouth on
the instruction of accused 1. This only emerged during accused
2’s testimony
in chief. Even though this
constituted a material aspect of her defense, when accused 2 was
being cross examined by
the State she said she forgot to inform her
lawyers of this. Similarly, her version that she could not
escape because the
door had been shut with a chain and a padlock,
with the keys having been either in accused 1’s possession or
having been
hidden away by him emerged for the first time when she
testified. This aspect, too, could and should have been put to
the
complainant when she was being cross examined. This was not
done.
[59]
I find that accused 2’s evidence that she could not escape from
the shack because keys were inaccessible and windows
had been shut
securely with a bugler net was a recent fabrication. The
insertion of the cloth by accused 2 in the mouth of
the complainant
on the instructions of accused 1 is similarly a recent fabrication
that was, in my view, meant to bolster accused
2’s otherwise
fragile defense of necessity.
[60]
Accused 2’s behavior on days subsequent to the rape in question
is one of indifference. It is hard to believe that
if accused 2
had been coerced on the previous night she would not at the earliest
available opportunity, especially in the absence
of accused 1 (the
source of the threat), not have reported the rape to the neighbors,
at the very least. On her own showing,
neighbours had come to
her rescue on previous occasions.
[61]
Even on her own showing, accused 2 could not have seriously and
genuinely believed that her life was in imminent danger.
As
already pointed out, her neighbours had rescued her when being
assaulted. She could, even in this instance, have raised
an
alarm at some opportune point during the ordeal. Moreover, she
is on record as having assaulted accused 1 to the point
of causing
him scars on his face despite being handicapped.
[62]
Accused 2’s labeling the complaint as “
the thing that
sleeps with his father
” adds a further dimension which does
not lend support to her version that she acted out of necessity.
It shows her
indifference to the rape on the complainant and is more
consistent with the stance of the complainant.
[63]
In my view, for the reasons already mentioned, accused 2 aided
accused 1 when raping the complainant on 30 June 2015.
She
inserted a cloth in the complainant’s mouth in order to prevent
the latter from being noisy and attracting the attention
of
neighbours. This conduct was unlawful and intentional.
Causing
a child to witness a sexual offence or act
[64]
This leaves me to consider whether on the facts of this case both
accused can be found to have caused the complainant to witness
or to
be present whilst they engaged in a sexual act within the meaning and
contemplation of
section 21(2)(a)
of Act 32 of 2007.
[65]
Section 21(2)(a)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
reads:
“
(2)
A person (‘A’) who unlawfully and intentionally, whether
for sexual gratification
of A or of a third person (‘C’)
or not, compels or causes a child compliant (‘B’),
without the consent
of B, to be in the presence of or watch-
(a) A while he
or she engages in a sexual act with C or another person
(‘D’);
(b)…,
is guilty of the
offence of compelling or causing a child to witness a sexual act.”
[66]
According to its preamble, Act 32 of 2007 is a sequel to “
the
prevalence of the commission of sexual offences in our society
”
which is “
primarily a social phenomenon…reflective of
deep seated, systemic dysfunctionality in our society
.”
Act 32 of 2007 is part of the legal mechanisms that are meant to
address this social phenomenon.
[67]
Indeed, children are great imitators and are quick to learn what they
see. In other words, they learn what they see lived.
It is therefore
necessary to guide them if and when they witness scenes that their
immature minds may not process well. In
Teddy
Bear Clinic for Abused Children & Another v Minister of Justice
and Constitutional Development & Others
[13]
Khampepe J said:
“
[1]
Children are precious members of our society and any law that affects
them must have due regard
to their vulnerability and their need for
guidance. We have a duty to ensure that they receive the
support and assistance
that is necessary for their positive growth
and development.”
[68]
It is against this background that the question at hand should be
considered. In this matter it is not in dispute that the
accused
engaged in sexual acts in the presence of their children. The
complainant’s testimony in this regard is as
follows:
“
What else did
she do? …. Another thing that my mother would do is she would
have sexual intercourse with my father in my
presence.
Did you see them
have that or do that? …. Yes.
Now how do you know
that they are having sexual intercourse what would that be doing? My
father would insert his penis into my mother
and my mother would do
that thrusting movement.
And where are they
when they do that? …… Inside the shack.
Where inside the
shack?......on the bed
Did they do this
infront of you, did they do it once or do they do it more than once?
…… They done it many times….
From what you could
from what happens the time that they have sex before and after and
during, do you think that they know that
you are aware when they are
having sex? …….. Yes
And how do you know
that, thinking or to what happened then why do you say that they know
you are awake? ……………Because
I was
watching TV.” Sic
[69]
I hasten to say, it is not the mere presence of a child when the
perpetrators are engaged in a sexual act that is offensive
in terms
of the section under consideration. Otherwise, the multitudes of
persons who live in abject poverty, occupying single
roomed shacks,
together with their children, would always run the risk of
contravening the section.
[70]
In my view, the offence is committed by the perpetrators
intentionally and unlawfully causing
[14]
a child to witness the sexual activity engaged in. Upon a
proper construction of the section the persons concerned must have
consciously and deliberately created circumstances that conduce to a
child witnessing sexual activity being engaged in. Furthermore,
in my view, the perpetrators must be conscious of the fact that the
child is watching them engage in sex. What happens, for instance,
where the alleged perpetrators are engaged in sex with the door
slightly ajar and not aware of the fact that the child has all
along
been peeping through and watching them? Can it be said that merely by
causing the door to be slightly ajar in circumstances
where they did
not even expect the presence of the child they have committed the
offence? I think not. In the instant matter, therefore,
the question
whether or not the accused were aware that the child had been
watching them is of significance. Under cross examination
the
complainant conceded that it was possible that on the day(s) she was
watching TV from her bed’s position her parents
might have
thought she was asleep, whereas she was not. Those are the facts upon
which a pronouncement should be made in this matter.
[71]
There was of course evidence of the accused having been drunk on many
occasions and engaging in sexual activity in the presence
of the
complainant. The offence is created by the perpetrators causing a
child to watch them having sexual intercourse, not by
the mere
possibility that the child might be watching or might have been
watching. The question whether a child was caused to watch
other
persons engaging in a sexual act is a matter for evidence, not
falling to be left to conjecture. The complainant’s
testimony
related purely to instances when she would be lying on her bed
“
watching TV when that happened
”.
[72]
On the facts of this matter, there can also be no reason for finding
the accused guilty on the basis of
dolus
eventualis.
Nor,
in my view, would there have been a basis for convicting the accused
in terms of section 1 (1) of the Criminal Law Amendment
Act 1 of
1988, according which a person who voluntarily consumes alcohol to
such an extent that it leads to criminal non-responsibility
and who,
whilst in this condition, commits an act punishable by law of which
he would have been convicted but his self-induced
lack of criminal
non-responsibility, is guilty of an offence.
[73]
I am accordingly of the view that the guilt of the accused on count 3
has not been proven beyond reasonable doubt.
Conclusion
[74]
Accused 1 is found guilty, on count 1, on the basis that he raped the
complainant on 30 June 2015 and 3 November 2015.
Accused
2 is found guilty of aiding accused 1 to rape the complainant, on
count 2.
Both
accused are found not guilty and discharged on count 3.
The
matter is postponed for sentence proceedings to 23 January 2017. The
accused shall remain in custody.
___________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the State:
Mr D A Willemse
Office
of the Director of Public Prosecutions
Bhisho
Attorney
for the first accused:
Mr K Skade
Justice
Centre
King
William’s Town
Attorney
for the second accused:
Ms N
Dyantyi
Justice
Centre
King
William’s Town
Dates
heard
25, 26 & 27 October; 02 & 14 November 2016
Date
Delivered
09 December 2016
1
Rape in contravention of
section
3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
[2]
Aiding
or abetting another person to commit a sexual offence in
contravention of
section 55
(c) of
Act
32 of 2007
[3]
Causing
a child to witness a sexual offence or sexual act in contravention
of section 21 (2) (a) of Act 32 of 2007
[4]
The letter reads:
“
Good
morning mom I am alright and how are you? I know what has
taken place but it has gone by and what has taken place has
taken
place. Now we must reconcile and love each other or if we do
not do such a thing forgiveness is the most important
part and I
have also forgiven you. I have forgiven you and to make it
come to and end we have got reconcile and forgive
each other.
I think of you I am longing for you and all of us please come and
see me on 24
th
October sleep well I love you mom and I will remain loving you.”
[5]
1981(3)
SA 172(A) at 180 E-H; see also
AS
v S
[2011] JOL 27154 (SCA)
[6]
2002(1) SACR 116 (SCA) para [23]
[7]
Cele v S
(dissenting judgment by Pillay J delivered on 12 January 2016 under
case no AR191/13 KZN, Pietermaritzburg)
[8]
S
v Goliath
1972
(3) SA 1
(A) at 24D
[9]
The
test for necessity is clearly an objective one.
[10]
Jonathan
Burchell
,
Principles of Criminal Law
(3
rd
Ed), p 259; the requirements were quoted with approval in
S
v Pretorius
1975 (2) SA 85
(SWA) at 98 C-D.
[11]
S
v Goliath
case (
supra
)
at 97
[12]
Du
Toit et al, Commentary on the Criminal Procedure Act
,
22 -22A
10
CCT12/13 [2013] ZACC 35: 2013 (12) BCLR 1429 (CC); 2014 (2) SA
168
(CC); 2014 (1) SACR 327 (CC) (3 October2013)
[14]
The
accused are charged on the basis that they caused (as against
compelling) the complainant to watch them whilst having sex