About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 541
|
|
D.J.D.P v S (A808/15) [2016] ZAGPPHC 541 (24 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: A808/15
DATE:
24 JUNE 2016
In
the matter between:
D
J D
P
.................................................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
In this appeal the appellant, D J W Du P, was convicted of
rape in terms of section 3 of the Sexual Offences Act 32 of 2007. He
was sentenced to 15 years’ imprisonment. Leave to appeal
against both conviction and sentence was granted by the trial court.
[2]
The complainant was 6 years of age when the appellant, her
uncle, raped her in her bedroom. The complainant’s mother, C N
(C), and the appellant are siblings.
[3]
On 11 May 2011, C had a braai at her home in honour of her
husband, B N (B) and the appellant, as it was their birthdays. An
invitation
was also extended to the appellant to sleep over after the
braai.
[4]
That night, whilst the complainant was asleep in her bedroom,
at some stage, her parents testified that they heard her cry. The
appellant offered to check on her. C stated that the appellant was
with the complainant for about 15 minutes when she told B to
check on
them.
[5]
B testified that when he entered the bedroom he noted that the
complainant was seated on the appellant’s lap. He enquired if
all was in order and the appellant replied in the affirmative, saying
it was only a nightmare. The next morning they discovered
that the
appellant had left without saying goodbye and the door had been left
open.
[6]
The following day, whilst on their way to drop off C at work,
they noticed that the complainant was not her usual self as she was
extremely quiet. After some enquiries as to what was the matter she
answered that she was afraid to tell because she thought they
would
give her a hiding. Eventually she told them that whilst the appellant
was in her bedroom with her the previous night, he
put his figure in
her private parts and told her not to tell. B took her to hospital
immediately whereafter where she was examined.
[7]
When the complainant testified, she stated that the appellant
inserted his finger and penis into her private parts, and even though
it was painful, she did not cry or scream. She further said that he
also licked her private parts.
[8]
The appellant takes issue that the complainant was a single
witness, and that there are contradictions in her evidence. He also
argues that no weight should be attached to the medical evidence of
Dr Khoele who examined the complainant and completed the J88.
[9]
From the record the magistrate acknowledged that the
complainant was a single witness and that her evidence was to be
dealt with
caution. Further, the magistrate also conceded that she
was not a perfect witness but concluded that she gave satisfactory
evidence;
she stood her ground and remained unshaken during
cross-examination.
[10]
I am mindful of the
dictum
of
Fletcher v S (171/09)
[2009]
ZASCA 169
(1 December 2009)
where it was pointed out that the
application of caution was envisaged to ensure that a wrongful
conviction will not emerge and
should not be confused with
corroboration that a sexual offence had taken place:
u
[8]
Bianca was a single witness to the rape. It is trite that her
evidence should be approached with caution. The objective of this
approach is mainly to reduce the risk of wrong convictions. It is not
to be confused with the erstwhile requirement of corroboration
in
sexual offences”. This appears from the following statement by
Olivier JA in S v Jackson: S V Jackson
1998 (1) SACR 470
(SCA) at
476e-f.
'In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt —
no more and no less. The evidence in a particular case
may call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule.'
[11]
In the current case I cannot find fault with the magistrate’s
analysis of the child’s evidence as a single witness, this
is
also so with the contradiction, relied upon by the appellant. These
contradictions, to my mind, are not material, as the evidence
of the
child is corroborated in material respects by her parent’s
evidence and the medical evidence.
[12]
The magistrate pointed out that the incident took place when
the child just woke up from sleep. Further, she was a very young
child,
the incident took place quite a while ago and her evidence was
intercepted by a long delay. These factors attributed to the not
so
perfect picture painted by the child’s evidence. Even in the
face of these adversities the magistrate concluded that ‘
...
contradictions
per se
do not
lead to the rejection of the witnesses’ evidence’.
[13]
I am not convinced that the magistrate came to the wrong
conclusion in accepting the evidence of the witnesses’ of the
state
in light of what is pointed out above and reference is had to S
v Francis
1991 (1) SACR 198
(A) at
204c-e
:
“
This
Court’s powers to interfere on appeal with the findings of fact
of the trial Court are limited (R v Dhfumayo and Another
1948 (2) SA
677
(A)). ... In the absence of any misdirection the trial Court’s
conclusion... is presumed to be correct.
...In
order to succeed on appeal... a reasonable doubt will not suffice to
justify interference with its findings... Bearing in mind
the
advantage which a trial Court has of seeing, hearing and appraising a
witness, it is only in exceptional cases that this Court
will be
entitled to interfere with the trial Court’s evaluation of oral
testimony (S v Robinson and Others
1968 (1) SA 666
(A) at 675G-H)’’
[14]
Turning to the medical evidence. Dr Khoele, qualified herself
as a medical doctor practising for 11 years having obtained her MBCHB
and MMED in Psychiatry. Whilst she is stationed at the Military
Hospital she renders assistance at the Crisis Centre where the
child
was brought for an examination. What cannot be taken away from Dr
Khoele’s evidence is that she conducted an examination
of the
child within 24 hours of the incident taking place. The result of her
examination was that the hymen was swollen with a
fresh tear at nine
o’clock. She concluded ‘that the child had multiple soft
tissue injuries to the genitalia’.
Further, the injuries were
in keeping with that caused by a blunt object such as an erect male
penis or an adult finger.
[15]
On the other hand the appellant called his own expert Dr
Lekozi a medical practitioner with a MBCHB, Diploma in Clinical
Forensic
Medicine and a lecturer at Medunsa in field of Clinical
Forensic where he trains nurses and doctors practising in the field
of
Clinical Forensic Medicine. He was requested to interpret the J88
completed by Dr Khoele and comment on her findings. He expressed
his
opinion stating that, where Dr Khoele describes what she saw as
injuries was in fact inflammation, and several sources could
be
responsible for this, like chemical irritants, poor hygiene and
possibly a blunt force. However, he was adamant that a blunt
force
was more improbable as a source of this inflammation.
[16]
I am persuaded that the magistrate commenced her analysis of
the expert evidence from the correct premise, and in doing so came to
the correct conclusion, that the role of an expert does not take over
the function of the court. Further, that the court still
has a duty
to evaluate and decide a case on the facts and evidence before it.
[17]
The bottom line is that the magistrate accepted that the
inflammation could have been caused by a number of sources but that
one
of these was a blunt force, which could not be excluded as sought
by Dr Lekozi. Importantly, the examination and observations by
Dr
Khoele within 24 hours of the incident could not be discounted and
these clinical findings corroborate the evidence of the child.
In the
circumstances the magistrate was correct in accepting Dr Khoele
evidence.
[18]
The approach to be adopted when dealing with expert evidence
ultimately lies with the presiding officer. This decision-making duty
should not be abdicated when dealing with expert evidence. The
examination of all the evidence cumulatively with the expert’s
reports is undertaken to determine if the opinions advanced by the
experts are founded on logical reasoning. See
Bolitho
v City and Hackney Authority
[1997] UKHL 46
;
[1998] AC 232(HL (E)); Michael and
Another v Linksfield Park Clinic (pty)
ltd and Another
2001 (3) SA
1188
(SCA) at 1200 para [34]
-
[36].
[19]
The appellant’s version is that he did not sleep over on
the night in question and had no knowledge of what happened to the
child. He also testified that he and his sister were not on good
terms and thus she had invented these accusations. The magistrate
noted in her judgment that this was not put to Chantelle when she was
being cross-examined. In my view, had this been done, it
would have
allowed Chantelle an opportunity to deny the challenge or even
qualify the evidence of the appellant, which he places
reliance upon.
[20]
It is trite that the failure to put one’s version to a
witness amounts to the witness’s testimony being regarded as
correct and unchallenged. See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at 36J-37E para [61] to
[63].
In the circumstances I find no misdirection by the
magistrate when the appellant’s evidence was rejected.
[21]
In light of the above I find no misdirection on the part of
the magistrate in the analysis of the evidence in
toto
and the conviction must stand.
[22]
Not much was advanced by both the appellant and the state
regarding sentence. It cannot be said that the magistrate imposed a
sentence
that was disturbingly inappropriate or that a material
misdirection occurred when dealing with sentencing. The magistrate
appreciated
that the minimum sentence was to be imposed, namely that
of life imprisonment and found that there were substantial and
compelling
factors to deviate therefrom and impose a lesser sentence.
In the circumstances I do not find it appropriate to interfere with
the magistrate’s decision on sentence as it was well
considered.
[23]
Consequently the following order is made:
The
appeal against both conviction and sentences are dismissed.
W
HUGHES
Judge
of the High Court Gauteng,
Pretoria
I
concur AC BASSON
Judge
of the High Court Gauteng,
Pretoria