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[2015] ZAKZPHC 27
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S.S.N v S (AR619/2014) [2015] ZAKZPHC 27 (30 April 2015)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR619/2014
In
the matter between:
S[…]
S[…]
N[…]
...............................................................................................................
APPELLANT
and
THE
STATE
...................................................................................................................
RESPONDENT
JUDGMENT
Delivered
on: Thursday, 30 April 2015
OLSEN
J (MOODLEY J concurring)
[1]
The appellant in this matter was convicted of rape and sentenced to
life imprisonment by the Regional Court sitting at Pietermaritzburg.
At the time of the events which gave rise to his conviction the
appellant was 35 years of age and the complainant was a 12 year
old
girl. The appeal is against both conviction and sentence.
[2]
The charge put to the appellant in the court
a quo
was that he
raped the complainant on a number of occasions between May 2011 and
July 2011. The evidence revealed that in
fact the period of the
alleged rapes was defined by the witnesses not with respect to dates,
but with respect to the absence of
the complainant’s mother
from home over the period concerned. The charge sheet ought to
have been amended during the
course of the trial because the period
did not coincide with the stated dates; but that did not happen.
Counsel appearing
for the State before us asked for the amendment and
counsel for the appellant agreed to it on the basis that the
amendment did
not prejudice his client in any way. We indicated
to counsel that the amendment would be granted in this judgment, and
we
do grant an amendment to the charge sheet by the deletion of the
words “May 2011 to July 2011” where they appear in
the
charge sheet, and the substitution therefor of the words “July
2011 to September 2011”; and by the deletion of
the words
“between May 2011 and July 2011” where they appear in the
charge sheet and the substitution therefor of the
words “from
July 2011 to September 2011”.
[3]
The complainant’s mother has two children by the appellant,
with whom she lived as husband and wife at the material time.
The complainant is older than these two children, having been born of
an earlier relationship between her mother and another man.
They all lived in the same household. Although the complainant
described the appellant as her “stepfather” during the
course of her evidence she confirmed that, prior to the events in
question in this case, her relationship with the appellant was
good
and that he treated her as his own child and did everything for her.
In ordinary discourse she called him “father”.
[4]
In mid-2011 the complainant’s younger half-brother became ill
and the complainant’s mother left with the sick child
for
Swayimane where the child was to be treated. She was away for
about six weeks. According to the complainant four
days after
her mother had left for Swayimane the appellant had sexual
intercourse with her. This was repeated on a nightly
basis
until her mother’s return after a period which the complainant
called “a whole month”. That gave
rise to the
charge that during the period in question the appellant had raped the
complainant on what the charge sheet calls “diverse
occasions”.
[5]
The first issue raised on appeal by the appellant is that the
complainant (who was 14 years of age when she gave evidence) took
the
oath to tell the truth (as provided by
s 162
of the
Criminal
Procedure Act, 1977
); whereas the record reveals that the complainant
was a witness who ought to have been admonished to speak the truth
(as contemplated
by
s 164
of the
Criminal Procedure Act).
[6]
The complainant gave evidence through an intermediary. When she
was called the court asked the complainant her age and
received the
reply, 14 years. The court then asked the complainant what
grade she was in and was told that it was Grade 9.
It is
necessary to record what followed.
“
COURT
Do you know what it means to take the oath, to speak the truth?
WITNESS
No.
COURT
Well, do you know what the difference is between
the truth and a lie?
WITNESS
Yes.
COURT
What is the difference?
WITNESS
When you are telling a lie, it is something that
not happens, but when you tell the truth, you are telling something
that happens.
COURT
Are you prepared to swear before God that you will
tell only the truth in Court today?
WITNESS
Yes, Your Worship.”
[7]
The comma inserted by the transcriber in the court’s first
question (i.e. the first question in the passage quoted above)
conveys that the question was what the court in
S v Raghubar
2013 (1) SACR 398 (SCA) called a “compound question”.
There were two questions. The complainant was being
asked
whether she knew what it meant to take an oath. The complainant
was being asked, secondly, whether she knew what it
was to speak the
truth. The court’s response to the negative answer
supports this; the learned Magistrate immediately
tried to deal with
one question at a time, starting with the question of the difference
between the truth and a lie.
[8]
The complainant’s affirmative answer to the question posed, and
her explanation of the difference between truth and falsity,
established that she knew and understood the difference between the
two. In the context in which she was asked to answer
that
essentially abstract question her answer is one of the more
convincing ones that a court is likely to come across when the
witness is a child.
[9]
Nevertheless, as pointed out by counsel for the appellant, the
complainant’s answer to the first question was in the
negative. Given that it was established that she knew what it
means to speak the truth, the negative answer must have been
directed
at the question as to whether she knew what it means to take the
oath. The word “oath” is not one which
would be
expected to be found naturally in the vocabulary of a 14 year old
child, in whatever language. The issue is whether
she did not
understand the word “oath”, or whether the complainant
did not understand the significance of taking an
oath. In the
latter case, an admonition would have been required. The Magistrate’s
question in my view cleared the
way to the taking of the oath.
He asked the complainant whether she would be prepared to “swear
before God” that
she would “tell only the truth in court
today”. She answered in the affirmative. Given her
age, her schooling,
the clarity with which she could express the
difference between truth and lies, and the fact that she was assisted
by an intermediary,
in my view the Magistrate was correct in
concluding that the complainant did understand the nature and import
of the oath, as a
result of which she was duly sworn. In
addition one can take comfort from the fact that there was an
admonition built into
the question as to whether she was prepared to
swear before God that she would only tell the truth in court,
especially considering
the clarity with which the complainant
expressed her understanding of the difference between the truth and
lies. I conclude
that there was no irregularity involved in the
fact that the complainant took the oath. (Counsel for the
appellant did not
argue that the complainant was not a competent
witness.)
[10]
The appellant’s argument in support of the appeal on the merits
of the conviction was somewhat narrowly confined.
(No criticism
is intended in making that observation.) It is accordingly not
necessary in this judgment to furnish a detailed
account of all of
the evidence.
[11]
As has already been said above, the complainant’s evidence
described an act of sexual intercourse between her and the
appellant
against her will on the first occasion, four days after her mother
had left. It then occurred on a daily basis
until her mother
returned. The prosecution considered it necessary to ask the
complainant to deal with one of the other occasions
when, according
to the complainant, the appellant was drunk and tore her pyjamas
(which he subsequently destroyed). On that
occasion the
complainant says that she cried out and that one Vusi Dlamini heard
this and looked through a gap into the room where
she and the
appellant lay. On the following day Mr Dlamini asked the
complainant why she had been crying. She gave
the answer that
it was not her, but her younger sibling who had been crying.
According to the complainant she did not tell
Mr Dlamini the truth
because the appellant had told her that if she revealed what was
going on he would kill her.
[12]
It is necessary to explain the accommodation arrangements in place at
the time. Mr Dlamini’s parents owned the
building.
A room in the building was occupied by the complainant’s family
as tenants. There is a doorway between
the room rented by the
complainant’s family and that occupied by Mr Dlamini,
apparently on his own. The door which
fits into that doorway is
not high enough to fill the frame. Mr Dlamini looked through
the gap between the top of the door
and the frame in order to see
what he did.
[13]
Mr Dlamini was called to give evidence. He said that he had
heard crying and decided that he had better see what was
going on.
He saw the appellant lying on top of the complainant with his (the
appellant’s) trousers down. He was
not able to say
whether the complainant was in a state of undress. He did not
claim to have seen any movements which suggested
that sexual
intercourse was underway at that time.
[14]
Mr Dlamini was at the time a young man still studying. He
reported what he had seen to his parents expecting that something
would be done. But nothing was done. In the end he had to
wait upon the return of the complainant’s mother in
order to
make the report which he regarded as necessary.
[15]
The complainant’s mother returned home at the beginning of
September. By then rumours were circulating that something
untoward had been going on in her absence. She questioned the
complainant who denied that anything had happened. She
also
questioned the appellant who denied it. The complainant’s aunt
became involved. She telephoned the complainant’s
mother and
one gets the impression that she insisted that the complainant’s
mother should establish what had been going on.
Eventually,
according to the evidence of the complainant’s mother, the
appellant confessed to her that he had had sexual
relations with the
complainant on one occasion when he had been drunk. At that
stage the complainant herself admitted to
her mother that her denials
had been false, and informed her mother of the full extent of what
had taken place in her absence.
It was reported to the police
and an examination by a doctor followed the next day.
[16]
The learned Magistrate carefully considered the evidence tendered by
the State and found it satisfactory in all material respects.
The learned Magistrate was not satisfied with the evidence of the
appellant. The appellant offered contradictory speculative
suggestions as to why Mr Dlamini would have invented an account of
sexual abuse by the appellant of the complainant. Neither of
the
appellant’s suggestions would have been convincing had it stood
alone; but both lost any value they had because they
were mutually
contradictory. The evidence revealed no reason why the complainant
would first deny and then confess falsely to sexual
activity with the
appellant, save for the appellant’s suggestion that it may have
had something to do with the fact that
he was not the complainant’s
biological father.
[17]
The Magistrate considered all the evidence and the probabilities, and
concluded that the appellant’s version could not
reasonably
possibly be true. The Magistrate came to this conclusion
acknowledging that there was no duty or onus on the appellant
to
establish why false evidence would have been fabricated by the
complainant and Mr Dlamini.
[18]
Counsel for the appellant does not offer any general criticism of the
manner in which the learned Magistrate approached the
evidence.
In my view a consideration of the record reveals that counsel’s
approach is the correct one. Instead
counsel focuses upon a
particular apparent contradiction between the evidence of the
complainant and that of Mr Dlamini, and argues
that it throws
sufficient doubt on the State’s case to justify an acquittal.
[19]
Mr Dlamini said that the observation he had made of what was going on
occurred at 6am in the morning. The question as
to when
precisely this event occurred was not pursued with the complainant
although she did say in response to a general question
concerning all
the events, that they occurred at night. The apparent
contradiction was not pursued in evidence and the learned
Magistrate
found it of little significance. In my view he cannot be
faulted in that regard.
[20]
However counsel for the appellant took the matter further before us.
He pointed out that according to the record the
complainant’s
evidence is that Mr Dlamini observed the second incident of sexual
intercourse between the complainant and
the appellant, whereas
according to Mr Dlamini’s evidence his observation was made on
the Sunday immediately preceding the
return of the complainant’s
mother on a Monday. This apparent contradiction was not
highlighted or dealt with at the
trial. It did not feature in
the Magistrate’s judgment.
[21]
In my view it is too narrow a consideration of the record which
generates a conclusion that there was such a contradiction.
Dealing first with the evidence of Mr Dlamini, he said that he had
reported what he had observed to his mother and father.
The
evidence of the complainant’s mother (and indeed the
complainant) reveals that rumours had started circulating before
the
return of the complainant’s mother and that they were well
established when she returned to the household on a Monday.
After describing what he had observed, Mr Dlamini said the following.
“
I
then left and told my mother and my father about this, but they did
not take any action after I had made this report. So
I then
decided to wait for the mother of the complainant to return so that I
could report this to her. The mother of the
complainant
returned back eventually and I made this report to her, that is all.”
The
record reveals that the court then intervened as follows.
“
Was
that the same day, weeks, months? --- she came back on a
Monday, the following day, because this incident took place on
Sunday.”
Reading
that question and answer literally generates a conflict with the
other evidence which suggests that Mr Dlamini’s report
to his
parents took place somewhat earlier than the day before the return of
the complainant’s mother. It was not argued
before us that
there was any other source of the rumours which had circulated
besides Mr Dlamini’s report of his observations.
It seems
to me that something got lost in the interpretation of the exchange
between the Magistrate and Mr Dlamini, or that Mr
Dlamini
misunderstood the question.
[22]
Be that as it may, and accepting counsel’s proposition that Mr
Dlamini’s evidence is that his observation was made
the day
before the complainant’s mother returned, the next question is
whether there is in fact a real contradiction between
that and the
evidence of the complainant. It is quite apparent from the
manner in which the complainant was led that it was
the prosecutor’s
intention to ask her to describe only two events with full
particularity. The one was the first occasion
of sexual
intercourse and the other the occasion when the appellant was drunk
and the complainant’s pyjamas were torn.
It is in that
context that the complainant said:
“
On
the second day I was wearing pyjamas, he even tore my pyjamas on the
side”.
And
then further:
“
Then
on the second day he came and on that day he was drunk. I cried
on the second day and brother Vusi heard me and he peeped
through a
hole to see what was going on.”
[23]
I am again concerned about the interpretation of evidence. What
was the complainant talking about? On the second
day after her
mother had left the first incident of sexual intercourse had not
taken place. When she said “on the second
day” did
she mean on the second day upon which sexual intercourse took place?
Or was she intending to convey that this
was the second of the
occasions on which she was giving particular evidence? If this
issue had been taken up in the course
of the trial some clarity might
have been achieved. But it was not. The address by the
appellant’s attorney in
the court
a quo
is reproduced in
the record. She did not raise the argument now put before us.
In my view this apparent contradiction
does not tarnish the decision
made by the Magistrate. The weight of the evidence and the
probabilities support his finding.
In my view the conviction
must stand.
[24]
Turning to the question of sentence, the learned Magistrate recorded
in his judgment on sentence that he is loath to impose
life
imprisonment and that he had searched for reasons not to impose the
minimum sentence. However he found the aggravating
features
overwhelming.
[25]
It was not argued that the learned Magistrate misdirected himself in
any respect other than by imposing a sentence which was
disproportionate.
[26]
The personal particulars of the appellant were placed before the
court
a quo
. He was 37 years of age at the time of his
conviction and therefore some 35 years of age at the time of the
events.
He had reached standard 10 at school. He has two
children born of his relationship with the complainant’s
mother.
He had been employed but had become retrenched.
He had no previous convictions.
[27]
A victim impact statement was produced but unfortunately was omitted
from the record before this court. However in his
judgment on
sentence the Magistrate quoted from the first paragraph as follows.
“
Before
the incident, my life was fine, I was all right and I was happy.
After the incident of being raped, I felt like I was
living in my own
world because I was asking myself how can a person who I regard as my
father, rape me. He used to do everything
for me that I wanted
and needed. I have known him for almost six years, calling him
my father, but in his mind, he had other
intentions about me.
What really hurts me, is that he is sick with HIV and he never used
condoms when he raped me.
I felt like it was not me he was
doing this to, but somebody else. I could not believe it.”
[28]
This passage from the victim impact statement highlights the most
disturbing features of this case. From the complainant’s
perspective a proper relationship of father and daughter had
developed between the appellant and the complainant. He used
to
assist her, even with washing her clothes. She came to call him
“father”. Her mother obviously thought
nothing of
leaving the complainant in the care of the appellant when she (the
mother) went off for some six weeks to seek medical
attention for one
of the children born of the relationship between the appellant and
her. One would have thought that in
those circumstances
paternal responsibilities and affection would have been to the fore
of the appellant’s mind. However
what he did to the
complainant reveals that from his perspective the relationship of
father and daughter, and the trust it engenders
(upon which both the
complainant and her mother relied), was more cultivated than natural,
and more apparent than real. On
the complainant’s
evidence the appellant raped her on something like thirty occasions.
He was not under the influence
of alcohol on the first occasion.
Her evidence discloses a deliberate grooming four nights after her
mother had left.
The appellant then had every opportunity, day
after day, to reflect on what he was doing. And yet he did not
desist.
No evidence was put before the court in support of the
proposition that for some or other reason the appellant’s moral
blameworthiness
should be regarded as less than what the facts
suggest. In my view the learned Magistrate cannot be faulted
for his finding
that there were no substantial and compelling
circumstances justifying the imposition of a lesser sentence than the
life sentence
prescribed for the present offence in terms of the
Criminal Law Amendment Act, 105 of 1997
.
The
following order is made.
1.
The appeal against both conviction
and sentence is dismissed.
___________________
OLSEN
J
____________________
MOODLEY
J
Date
of Hearing: TUESDAY, 21 APRIL 2015
Date of Judgment: : THURSDAY,
30 APRIL 2015
For
the Appellant : Mr E X Sindane
Instructed
by: LEGAL AID OF SOUTH AFRICA
Appellant’s
Attorneys
20
OTTO STREET
PIETERMARITZBURG
(Ref.:
)
(Tel
No.: 033 – 394 2190 )
For
the Respondent: Ms S Mcanyana
Instructed
by: Director of Public Prosecutions
Respondent’s
Attorneys
6
th
Floor, Southern Life Building
88
Joe Slovo Street
Durban
(Ref.
(Tel.:
031 – 3345114 / 033 – 845 4400)