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[2016] ZAECBHC 16
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S v M.D and Another (CC55/2016) [2016] ZAECBHC 16 (9 December 2016)
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