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[2016] ZAGPPHC 194
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Manyapelo v S (A132/2015) [2016] ZAGPPHC 194 (14 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.:
A132/2015
14/4/16
Not reportable
Not of interest
to other judges
Revised
In the matter
between:
KOLOANE LUCAS
MANYAPELO
Applicant
and
THE
STATE
Respondent
JUDGMENT
JANSEN J
[1]
The
appellant, Kolane Lucas Manyapelo, is a 67 year old male serving a
term of 20 years imprisonment at the Correctional Services
of
Klerksdorp, having been convicted on a charge of rape in the regional
court for the Regional Division of Northwest, held at
Klerksdorp on
17 October 2013.
[2]
The
regional magistrate dismissed the appellant’s appeal in respect
of conviction and sentence but he was granted leave to
appeal in
respect of both his conviction and sentence by this court.
[3]
The
appellant was legally represented throughout the proceedings.
[4]
There
was only one charge against the appellant namely rape in terms of the
Sexual Offences Act 32 of 2007, read with the provisions
of sections
51 and 52 and schedule 2 of the Criminal Law Amendment Act 105
of 1977, as amended. It was alleged that
during or about
December 2011 near Kanana, the appellant unlawfully and intentionally
committed an act of sexual penetration with
his minor daughter who
was born on 25 November 1997 (which was proved by way of her birth
certificate).
[5]
The
appellant was convicted of rape on 30 October 2013 and sentenced to
20 years’ imprisonment on 31 October 2013.
[6]
The
appellant was granted bail, pending his appeal to this court.
[7]
The
trial commenced on 16 May 2013, and it was placed on record that the
consequences of section 51(1) had been explained to
the
appellant.
[8]
The
appellant pleaded not guilty and exercised his right not to proffer a
plea explanation.
[9]
The
minor gave evidence through an intermediary, after a section 170(A)
application in terms of the
Criminal Procedure Act 51 of 1977
had
been brought.
[10]
It was
also placed on record that the appellant was the complainant’s
biological father.
[11]
An
intermediary was duly sworn in and testified that she was an
educator, and that she had acted as an intermediary since 2003.
[12]
When
the minor testified she was 15 and a half years old. The minor
testified that she did not like her father because he
had done
“filthy things” to her. She testified that she did
not live with him but that the alleged rape had taken
place on one of
the occasions when she had visited him. She testified that she
was constrained to sleep in her father’s
bed in his bedroom,
and further testified that there was nobody present when the alleged
rape took place.
[13]
The
minor testified that during the night she realised that the appellant
was removing her panty and that he was lying on top of
her whilst
holding a flashlight in his hand. Thereafter he inserted his penis
into her vagina. When he had finished, he instructed
her not to
tell her mother and added that he would buy her clothes if she did
not tell her mother. She said they both fell
asleep after the
incident and that he took her to the local taxi rank the next morning
(an arrangement which had been made prior
to the incident).
[14]
The
minor testified that the incident happened during the school
holidays. She testified that she was then in grade 6 but failed
her
grade and thus had to repeat grade 6. She testified that she
did not tell her mother about what had happened “
because
of Satan
”.
She only told the social worker at school about the incident,
who telephoned her mother. This was long after the
incident and she
could not recall the social worker’s name.
[15]
The
minor testified that she also told a cleaner at the school named E.
K. and a teacher called R. van der Z. about the rape. She
further testified that her father raped her once only. She
never visited her father again.
[16]
During
cross-examination, the minor was asked whether it is correct that her
father was forced to leave the family home because
he was no longer
on good terms with her mother. She answered in the affirmative.
[17]
The
minor also conceded that her mother refused to visit her father. She
admitted that she only visited her father when her
mother was not at
the family home. She further admitted that she used to visit
her father twice a month during the day in
the company of friends.
She also confessed that she had told her father during her last
visit to him that her mother did
not wish her to visit him any longer
as her mother would assault her when she found out that she had
visited her father. She
also conceded that her father and the
elderly woman staying with him loved her very much. Furthermore,
she testified that
the elderly woman was always present when she
visited her father. She denied that the elderly woman bullied
her when she
was there and admitted that she always gave her money to
return by bus to her residential home.
[18]
Further
in cross-examination, when asked about God and telling the truth, she
testified as follows when asked whether she could
say before God that
her father had never raped her: “
I
do not know.
”
[19]
It was
put to her that there were people who did not like her father and who
had told her to come and lie in court, which she denied.
[20]
When
questioned about the discrepancy in her evidence that she only
visited her father during the day when accompanied by friends,
but
had testified that she had, alone, slept over at her father’s
home, she stated: “
I
cannot answer.
”
During further cross-examination she reiterated that she always
visited her father in the company of a friend. It
was also put
to her that the neighbours saw when she visited her father, which she
denied, but she could not explain her denial.
She simply
remained silent and did not respond.
[21]
It was
further put to the minor that the neighbours would testify that they
saw her visiting her father during the day and further
that she never
visited her father during December 2011, which she denied.
[22]
The
minor testified that she indeed visited her father during December
2011 and that the elderly woman was present. She changed
her
version during further questioning and admitted that her father had
bought her clothes in November 2011 because he knew that
he would not
see her in December 2011, because he left for circumcision ceremonies
and only returned on 1 January 2012.
[23]
The
minor, as a result, admitted that her father could not have raped her
in December 2011. In re-examination, she was unable
to confirm
whether or not she had conceded that her father had not raped her or
was not at home during December 2011. There was
simply a long pause
and no response. She, however, persisted in stating that her father
had done “filthy things” to
her.
[24]
The
court then asked the minor a question about the cleaning woman (F.)
at the school whom she had told about the rape, and she
said she was
called into the principal’s office and that a social worker was
present. The minor’s evidence was
very confusing and she
had no idea about time or years as she believed that the year prior
to her trial was 2011. She told
the court that she had known F.
for five years which was clearly inaccurate as she testified that she
told F. about the rape in
2011.
[25]
The
next state witness was the teacher R. van der Z.. She testified
that the school which the complainant attended was a special
educational needs school. She testified that she was the Head
of Educational Guidance and heard all disciplinary hearings.
According to her testimony it was reported to her that the
minor was experiencing problems at school. On the 17
th
of May 2012 Ms Van der Z. phoned the minor’s mother to arrange
a meeting to discuss the problems. The meeting was held
in the
deputy-principal’s office who was present as was the mother and
the cleaner who had to act as an interpreter because
the minor was
more fluent in Setswana. (I pause to mention that the
intermediary spoke Sotho to the minor, stating that Sesotho
and
Setswana are related. They might be but they are different languages
in many respects. It places a question mark behind the
minor’s
ability to have understood any of the statements put to her by the
intermediary and
vice
versa
).
Furthermore, the intermediary, Numvula Dorothy Jass, placed on record
that she would be speaking in English. This, in itself,
poses a
problem. With a child witness, the intermediary must clearly speak to
a child in her home native language.
[26]
At the
meeting, the people present asked the minor why she made
inappropriate sexual noises in class which disturbed the other school
children. She also made sexual suggestions to boys. Upon
questioning, Ms Z. said this was the first time that she behaved
in
this way at the school as she only commenced attending the school in
2012. However, she said this was not the first time
that the
minor misbehaved. She had done so previously and had built up
250 demerit points. She testified that the minor
was very shy
during the meeting and did not wish to respond to questions. F.
translated and the minor stated that she had
had intercourse with her
father.
[27]
The
mother started crying because she clearly knew nothing about the
incident. Ms Z. phoned Child Line and the police arrived.
Ms
Z. denied that there was a social worker at the school and stated
that Child Line sent a social worker to the school at
her behest.
Although the social worker consulted with the minor, she did
not cease her behaviour and was expelled from the
hostel and matters
exponentially became worse.
[28]
During
cross-examination, Ms Z. said that the minor’s behaviour
commenced during about February 2012. She mentioned
that the
minor told F. for the first time about the alleged rape during the
meeting in May 2012.
[29]
On a
question of the court, Ms Z. told the court that the school which the
minor attended was for problem children, either because
they had
learning difficulties or because they misbehaved in other ways such
as abusing alcohol.
[30]
The
next state witness was the minor’s mother. Clearly the mother
also had problems in following the interpreter. She often
stated that
she did not understand the questions, to such an extent that the
court had to ask her whether she understood them.
She answered in the
affirmative. However, it appears from the evidence that she followed
the interpreter with difficulty because
Setswana was her home
language.
[31]
The
mother confirmed that the minor was a slow learner and that the
school addressed a letter to attend a meeting at the school,
which
she did, accompanied by her elder daughter. She confirmed that
F. told her during the meeting that the minor had been
raped by her
father and that she was further told that the child was misbehaving
in general. She was told that the “funny
things”
that her child was doing related to sexual intercourse and that she
wanted have sexual intercourse with boys attending
the school. This
was explained to her by F.. When the mother later confronted
her daughter, she was shy and refused
to speak to her.
[32]
Upon
further questioning, she admitted that the minor later herself, after
the meeting at the school, told her about the rape by
her father.
[33]
The
mother testified that she and her husband lived apart and that the
minor would visit her father on her own. She confirmed
that she
would sleep over, for example, on a Friday and return on the
Saturday.
[34]
The
mother said that she did not wish her daughter to visit her father
because “
she
did not appear very well”
to the mother. Upon questioning, she said the child did not
appear very well because she would refuse to speak about what
happened at her father’s place, because her father had told her
to say nothing. She did not explain that she knew the
father
had allegedly told the minor to say nothing. What the minor did tell
her was that she slept in her father’s bed although
there were
two rooms, so she phoned the appellant and told him that she did not
want the minor to visit him. The appellant told
her that it was the
minor’s right to visit him.
[35]
The
mother admitted that the minor visited the father but it was without
her permission, when she was at work, because she did not
wish the
minor to visit her father. She also visited him over weekends
and slept over without a friend. The mother
testified that the
elderly woman was not always at the father’s home. Again, it is
unclear as to how she knew this or could
testify about the absence or
presence of the elderly woman.
[36]
The
mother further testified that even before the minor went to the
remedial school in 2012, she referred the child to a psychologist
at
the Crisis Centre, V., because of her strange behaviour. V.,
according to the mother, called in the father for questioning.
Apparently, her father would show her pornography “
on
the TV”
.
She changed her version thereafter and stated that this
happened after the meeting at the school. The mother was
completely confused. She then reverted to stating that she took
the child to a psychologist before the meeting at the school
to find
an appropriate school to which to send her. She added that she
took her to the Crisis Centre because the child would
sometimes
report that when they slept together, the father did funny things to
her. She said that she was surprised, when informed
at the meeting,
that her daughter had been raped because at that stage she did not
know that her child had been raped. She
did not tell the school
about the videos but reiterated that the child had later told her
that the father did “funny things”
to her.
[37]
The
mother testified that the child used to be a well-behaved scholar but
then her strange behaviour started. She was emotionally
unable
to cope at school. It was put to the mother that the appellant
would testify that she had problems at all the schools
because she
was a slow learner, but the mother said her emotional state made it
impossible for her to fit into any school.
[38]
It was
put to her that she falsely wished to blame the appellant for all the
minor’s problems, which she denied. It
was also put to
her that whilst she was still living with the appellant, the police
brought the minor home because she went missing
on various occasions,
which she admitted. It was further put to the mother that the
appellant would testify that he looked
after the child, which the
mother denied. It was also put to her that she made up stories
to get the appellant into trouble,
which she denied.
[39]
It was
put to her that the appellant would testify that the child never
slept over at his place, save when in her, the mother’s,
company. The mother denied that she slept over at the
father’s house with the minor. (The appellant later testified
that she slept over to discuss their marital problems.) She testified
that she did not want her child to sleep over and share a
bed with
the appellant. She then confessed that on some occasions she
would allow the child to go to the appellant because
he would buy her
things. This, in itself, was a strange admission given the fact that
she maintained that she did not wish the
minor to visit the
appellant.
[40]
On a
question of the court, she testified that she and the appellant had
been living apart since 2010.
[41]
F. was
called next. She confirmed what the previous witnesses had said but
added that the minor had a boyfriend and had confessed
to her that
she had sexual intercourse with him in the toilet at the school.
Thereafter, she told F. that she had also had
sexual
intercourse with her father. She testified that the minor did
not know how many times the appellant had sexual intercourse
with her
and that the minor did not tell her mother because she was scared.
She stated that the mother was crying at the
meeting and that
the minor was very shy and quiet during the course of the meeting.
She said the minor was always involved with
boys and very naughty.
[42]
F. was
confronted with the allegation that the mother was clearly pretending
to cry because she had already taken her to the Crisis
Centre, but F.
said even she was affected by the statement that the appellant had
raped his own child. She denied that the minor
had told her that she
had been raped by the appellant before the meeting.
[43]
The
state then closed its case.
[44]
The
appellant testified next. He testified that the minor used to visit
him with two of her friends, and never alone, and only slept
over
when accompanied by her mother. He denied raping the minor or her
sleeping over on weekends and blamed these lies on the mother
because
she hated him so much. He gave a version that his wife had told
somebody at the “Metropolitan” that he
was deceased as
she wanted money. The minor, so her father testified, was
expelled from school because of a lack of funds.
[45]
The
appellant testified that the mother treated him like a baby and that
they had often been called in by the various schools which
the minor
had attended because of her misconduct. She also went missing
three times and the father said that he went to look
for her. He
denied showing the child pornography. He testified that he saw
the minor last in April 2013 and she and
her friend confessed to him
that she had failed at school because she “played” too
much. He mentioned that he
has six daughters and had never been
accused of any inappropriate behaviour towards the other five
daughters.
[46]
The
appellant testified that he loved the minor.
[47]
During
cross-examination, the appellant was questioned about his visit to
the Metropolitan and why this fact had not been put to
his wife. He
stated that he was confused and did not tell his attorney. He
testified that he had paid the child’s
school fees and bought
her clothes annually during December and January. Later on he
admitted, however, that it was the mother
who paid the school fees.
[48]
The
appellant then admitted that he was not even aware of the fact that
the minor was in a school in Potchefstroom. It was
put to the
father that the daughter visited him only to be raped by him. He
denied raping her. He reverted to his version
that the mother
had a vendetta against him. He also claimed that the mother
“hurt” him, which was new evidence.
He admitted
that he was already residing with the elderly woman in 2010.
[49]
The
appellant admitted that he fell in love with the woman with whom he
was staying because he was allegedly in an abusive relationship,
and
hence proposed to her. She accepted his proposal after two weeks.
They started living together permanently during 2011. However,
he alleged that the minor and the mother visited him in 2010 and
slept over when his new “wife”’ only visited
him
and was not yet staying with him.
[50]
The
appellant’s evidence became extremely confusing – on the
one hand, stating that when the minor slept over at his
place, she
had to sleep in his bed, on the other hand stating that he had a new
girlfriend sleeping with him. He then testified
that the minor would
visit occasionally but did not like his girlfriend and would then
leave.
[51]
It was
also put to the appellant that it was very strange that he was
allegedly in an abusive relationship, yet the police was never
called.
[52]
The
next defence witness was the appellant’s girlfriend. She
testified that the appellant never raped the minor, never slept
over,
and never came to her father alone. She testified that she was
always present over week-ends. Under cross-examination,
she
testified that she was a “neighbour” of the mother and
the minor and did not know of any problems between the appellant
and
his wife. She stated that her relationship with the appellant only
started in 2011. She then changed her version and said she
lived at
the back of the appellant and his wife’s house and that the
wife saw the appellant visiting her. This was in 2010.
[53]
It was
put to her that in testifying that she was always with the appellant
over weekends, she was seeking to protect him. She denied
this. She
also stated that the minor always visited her father with a friend.
[54]
The
last witness for the defence was a neighbour of the appellant’s,
who testified that the minor visited on Saturday or Sunday
afternoons
with a friend or friends and would not sleep over. She was forced to
concede during cross-examination that she only
knew what happened
during the day but not at night.
[55]
The
argument on behalf of the minor was short and to the point: the
appellant and his girlfriend did their best to deny the rape
or that
the child ever slept over. On behalf of the appellant, the
inconsistencies in the state’s witnesses’ evidence
were
pointed out. As set out in the synopsis of the evidence above, there
were important contradictions. It was argued by the prosecutor
that
the appellant was the one who fabricated evidence and who said that
the mother assaulted him, that he was in an abusive relationship,
and
that she wanted to get back at him. Yet he could not explain why the
police had never been called in before.
Analysis of
the evidence
[56]
It is
clear that the minor was a problem child, seemed to be sexually
active and already creating problems before she went to her
new
school in Potchefstroom. Her evidence was confusing. She made no
mention of seeing “funny” videos at the appellant’s
house. The mother seemed to suspect something because the minor told
her that the appellant slept with her in his bed. She did
not wish
her child to visit him. However, the suggestion that she somehow
wanted to incriminate the father seems baseless.
[57]
None
of the witnesses were model witnesses. The minor’s mother
contradicted the minor’s evidence during cross-examination
stating that she would sleep over at the father and that he insisted
on her sharing a bed with him. The father’s girlfriend
testified to the contrary.
[58]
A
large lacuna in the State’s evidence was the fact that the
evidence that the mother had taken the minor to the Crisis Centre
before her misbehaviour at her new school in Potchefstroom had
commenced, was never followed up by the State. This evidence would
have been of great assistance as the psychologist, V., even called in
the father, as was testified by the mother. No witnesses
were called
to testify regarding the need for the mother to visit the Crisis
Centre and the minor’s mother was not cross-examined
on this
aspect. Clearly the minor was already misbehaving at that
stage.
[59]
There
were many aspects of the minor’s evidence which were
unsatisfactory. In particular, it is important that she
admitted that her father could not have raped her in December 2011 as
alleged by her. She also admitted that he and the old woman
loved her
very much. Her evidence was also, under cross-examination, that she
only visited her father in the company of friends.
However, it should
be added that dates were clearly not the minor’s strong suit.
[60]
The
delay between the rape and the complainant reporting it may not be
taken into account because various factors may give rise
to the delay
such a shame or intimidation as provided for by section 59 of the
Criminal Law Sexual Offences and Related Matters
Amendment Act of
2007.
[61]
The
minor was a single witness, and hence the cautionary rule applies. In
Rex
versus Mokoena
1956 (3) SA 81
(A)
at
85H
it was stated that the evidence must not only be credible but also
reliable but it is clear that there is no rule of thumb test
or
formula to apply when it comes to a consideration of the credibility
of a single witness (
S
v Webber
1971 (3) SA 754
(A)
at
758
).
The trial Judge will weigh the evidence, consider the merits and
demerits thereof 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 or
she is satisfied
that the truth has been told. (
S
v Sauls & others
1981
(3) SA 172
(A)
at
180
E-F
)
.
The
second cautionary rule which finds application is the fact that the
minor was a child.
[62]
In
this matter, various questions arise. What happened to the child
before the alleged “rape”? Why was she sent to a
psychologist by the mother? Why was she emotionally not coping at
school? Why did she on the one hand maintain that her father
raped
her in December and then changed her version that he could not have
done so because he had left for initiation ceremonies?
Why did she,
on the one hand, testify that she slept over at the father but on the
other hand admit that she only visited him in
company of friends?
[63]
Why
did she go missing on occasions? On her own version, she had “sexual
experience” with a boyfriend and would thus
know what the
sexual act entailed.
[64]
The
prosecutor failed to address all these issues as did the counsel for
the appellant. Given all the lacunae in the State’s
case and
applying the cautionary rule, it cannot be stated that the State did
not prove its case beyond a reasonable doubt.
[65]
The
analysis on which the court must embark, as was spelt out in the
matter of
Buzwe
Maxwell Musoti and the State
(2013) ZASCA 160
(25 November 2013) at
par [21]
is
carefully to evaluate the evidence of the complainant and that of the
appellant, weighing both against the intrinsic probabilities
of each
version.
[66]
It was
never placed on record in which language the interpreter interpreted.
It was clear that the mother had difficulty in following
him. The
mother indicated that she wished to testify in Sotho. The appellant
stated that he wished to testify in Setswana.
[67]
When
regard is had to the minor’s evidence, she contradicted herself
on whether she slept over at her father and whether she
only visited
him during the day in the company of friends. She was clearly
sexually active, and had problems at schools before
her mother was
called to the principal’s office at the Potchefstroom school.
She was unable, when asked, to confirm before
God, that she was
telling the truth in alleging that her father had raped her. It
appears as though her problems commenced
long before the alleged
instance of rape, as a result of which her mother took her to the
Crisis Centre to the psychologist V.,
who also called in the father.
V.’s evidence was of cardinal importance, yet V. was not called
by any of the parties.
[68]
Furthermore,
it should be borne in mind that the mother admitted that the reason
why the minor was placed in a school in Potchefstroom
was because she
is a slow learner.
[69]
The
father blamed the mother in stating that she had told the child to
fabricate stories. He was also far from being a model witness.
However, his version that the mother wished to implicate him was
never properly canvassed during cross-examination.
[70]
Further,
no medical report was obtained, but it would probably not have
assisted the court much in that the minor alleged that she
had sexual
intercourse with a boy at school. The minor never testified to this
effect. However, F. testified that the minor was
always involved with
boys and very naughty.
[71]
The
appellant’s girlfriend, E. K., also corroborated the
appellant’s testimony.
[72]
The
manner in which the trial was conducted is to be deplored. Cardinal
witnesses such as the minor’s friends and V., the
psychologist,
were never called.
[73]
In the
result, it cannot be stated that the appellant’s version cannot
reasonably possibly be true and should be rejected.
The State did not
prove its case beyond a reasonable doubt.
[74]
During
the sentencing procedure, it transpired that the appellant was 67
years old and was born on 4 March 1946 and has no criminal
record.
He raised five daughters, one of which passed away. He supports
two grandchildren because of his daughter’s
death. He
also has a duty of support towards the minor. He is a primary
caregiver in full-time employment and works
long hours as a driver,
even at his age. The appellant was also paying R800-00 a month for
the maintenance of the minor. He had
four remaining daughter and had
never been convicted of any misbehaviour towards any of his
daughters. The complaint by the minor
was the first complaint of any
alleged deviant sexual behaviour.
[75]
The
appellant had been in custody since his application for leave to
appeal was refused on 31 October 2013 by the magistrate. Leave
to appeal was granted on 11 August 2014 by this court and the
appellant’s bail application was successful on 14 November
2014. Thus the appellant was in custody at the Klerksdorp
Correctional Services for a year.
[76]
No
witness impact report nor a pre-sentencing report was obtained.
On a conspectus of the evidence it appears as though the
minor was,
in general, a miscreant who ran away from home, already had problems
at school (the nature of which unclear) before
she attended her new
school and who, in general, led a licentious lifestyle.
[77]
In the
premises, the appeal is upheld.
[78]
The
following order is proposed: —
Order
1.
The
appeal is upheld.
2.
The
conviction and sentence are set aside.
MM JANSEN J
Judge of the High
Court
I agree and it is so
ordered.
KGANYAGO AJ
Acting Judge of the
High Court
For the Appellant
Advocate
Pistorius
(082577 4532)
Instructed by
Schoeman Steyn
Attorneys, Welkom
For the
Respondent
:
Advocate
L Williams
(084 294
8548)
Instructed by
The
Office of the Director of Public Prosecutions, Gauteng Division,
Pretoria