About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 49
|
|
Z.F v S (AR 764/2014) [2015] ZAKZPHC 49; [2016] 1 All SA 296 (KZP) (22 October 2015)
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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 764/2014
DATE:
22 OCTOBER 2015
REPORTABLE
In
the matter between:
ZF
................................................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Delivered
on: 22 October 2015
Gorven
J:
[1]
The appellant was charged with five
offences in the Regional Court, Durban. These were:
Count
1: Indecent assault;
Count
2: Rape;
Count
3: Rape;
Count
4: Assault with intent to do grievous bodily harm;
Count
5: Rape by way of a contravention of s 3 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act
[1]
read with s 51 of the Criminal Law Amendment Act
[2]
(the CLA Act) and further read with s 94 of the Criminal
Procedure Act 51 of 1977
[3]
(the
Act).
[2]
It
was alleged that all the crimes were committed against P, his
biological daughter. The first two counts were alleged to have
taken
place in 2006, the third 2007 and the fourth and fifth in 2008.
In the fifth two rapes were alleged. Before the appellant
pleaded,
the reliance of the State on the provisions of the CLA Act as regards
count 5 was drawn to his attention.
[4]
[3]
The appellant was legally represented
throughout. He pleaded not guilty to all the counts and gave no plea
explanation. He denied
all of the allegations in the charges. He
admitted that P was his biological daughter. On 26 November 2010, he
was convicted as
charged on all five counts. The following sentences
were imposed. For count 1, five years’ imprisonment. For counts
2 and
3, twelve years’ imprisonment each. For count 4, three
years’ imprisonment and for count 5, life imprisonment. The
sentences on counts 1 and 4 were made to run concurrently as were
those on counts 2 and 3. Apart from the sentence of life
imprisonment,
therefore, the effective sentence was one of 17 years’
imprisonment. The sentences were imposed on 2 December 2010. This
appeal is against the convictions and sentences, with the leave of
the court a quo.
[4]
At the outset of the trial, the State
brought an application in terms of s 170A of the Act for the use
of an intermediary whilst
P gave evidence. At the time, P was 20
years old. The magistrate asked the legal representative of the
appellant whether there
was any objection to the application. There
was none. The magistrate then granted the application. The services
of the intermediary
were utilised during P’s evidence. There is
no issue that the intermediary was a person qualified to act as such
under s 170A
or that she did so appropriately and competently.
On appeal, however, the appellant took the point that s 170A(1)
did not
entitle the magistrate to grant such an application because P
was over the biological and mental age of 18 years. This was said
to
amount to an irregularity which vitiated the proceedings.
[5]
The relevant part of s 170A(1) reads
as follows:
‘
Whenever
criminal proceedings are pending before any court and it appears to
such court that it would expose any witness under the
biological or
mental age of eighteen years to undue mental stress or suffering if
he or she testifies at such proceedings, the
court may . . . appoint
a competent person as an intermediary in order to enable such witness
to give his or her evidence through
that intermediary.’
[6]
The
first question to determine is whether the use of the intermediary
amounted to an irregularity. For this purpose, s 170A(1)
must be
construed. This subsection was amended in 2007. Before it was
amended, it simply referred to the age of 18 years. In
S
v Dayimani
,
[5]
Plaskett J held that this excluded mental age and meant only a
biological age of less than 18 years. The amendment makes it clear
that a biological and a mental age of less than 18 years both qualify
for the use of an intermediary if the other requirements
of the
section are met. In
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
,
[6]
(
DPP,
Transvaal
)
the section was subjected to a constitutional challenge but was found
to pass muster.
[7]
It is significant that the rationale
underlying the decision of the Constitutional Court in
DPP,
Transvaal
was that the section was
designed to protect children. Ngcobo J dealt with this aspect by
saying, of the enquiry to be conducted
by judicial officers to
determine whether an intermediary should be appointed:
‘
The
overriding consideration at that enquiry is to prevent the child from
exposure to undue stress that may arise from testifying
in court.
What is required of the judicial officer is to consider whether, on
the evidence presented to him or her, viewed in the
light of the
objectives of the Constitution and the subsection, it is in the
best interests of the child that an intermediary
be appointed.
[116]
Following the approach outlined here not only protects child
complainants from unnecessary trauma, it helps to ensure that
the
trial court receives evidence that is more freely presented, more
likely to be true and better understood by the court.
Given the
special vulnerability of the child witness, the fairness of the trial
accordingly stands to be enhanced rather than impeded
by the use of
these procedures. In my view, these special procedures should not be
seen as justifiable limitations on the right
to a fair trial, but as
measures conducive to a trial that is fair to all.’
[7]
And
later:
‘
To
conclude, therefore, s 170A(1) is designed to ensure the paramountcy
of the best interests of the child complainant in criminal
proceedings in which the child testifies. Properly interpreted and
applied in the light of s 28(2) of the Constitution and its
objective, as it must be, the subsection achieves that end. It does
not exclude the protection that s 28(2) requires to be
afforded
to children.’
[8]
[8]
It
is clear that the Constitutional Court related s 170A to the
imperative in s 28(2) of the Constitution
[9]
that the interests of the child are paramount in any matter relating
to the child. This section is therefore properly understood
as having
been designed for the benefit of children, who, under our law, become
adults at age 18. In argument before us, the State
submitted that no
irregularity occurred in this matter. In support of this submission,
we were referred to an unreported judgment
in the matter of
S
v Hewitt
.
[10]
That judgment was given in an application for leave to appeal against
the certification, on special review, that proceedings in
the
magistrates’ court in a trial for rape were in accordance with
justice. Leaving aside the fact that no appeal lies from
such
certification, D Pillay J considered a similar situation to that
facing us. The complainant, when testifying, was just over
the age of
18 and an intermediary had been appointed, ostensibly in terms of
s 170A. The learned judge construed the section
and, having
considered
DPP,
Transvaal
,
held that no irregularity had occurred. Her reasoning was as follows:
‘
By
setting 18 years as the age limit for protection, the legislature
impliedly accepted that complainants up to that age are vulnerable.
Circumstances may be that a child witness under 18 is not vulnerable
or an adult witness is vulnerable. Therefore, I interpret
s 170A(1)
to mean that age limit of 18 years to be a guideline (
sic
).
It is but one indication of the capability of a witness to testify,
namely her biological level of maturity. Emotional and psychological
maturity must also be factored into the discretion. By treating the
section as a guideline assures its constitutional validity
(
sic
).
Treating the age of 18 years as a jurisdictional prerequisite,
injects an inflexibility that defeats the purpose of the section.’
[9]
I
respectfully disagree with this conclusion and with the reasoning
employed by the learned judge. In the first place, whilst it
seeks
support from
DPP,
Transvaal
,
no such support is to be found there. Secondly, the finding that the
legislature did not mean to limit the application of s 170A
to
those under the age of 18 is contrary to the principles of
interpretation of documents. The correct approach has been set out
in
Cool
Ideas 1186 CC v Hubbard & another
,
[11]
as follows:
‘
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).
’
[12]
[10]
The
ordinary grammatical meaning is that the section applies only to
those under the biological or mental age of 18. This leads
to no
absurdity. Special considerations apply to child witnesses. I see no
reason why including only children and those with a
mental age of
less than 18 is absurd. In addition, after it was held that only
those under the biological age of 18 qualified,
the section was
amended to include those under the mental age of 18. No further
categories were included. This is an indication
that the legislature
intended to exclude all adults who also have a mental age of 18 or
over. There are other protections given
to adult and other witnesses
who don’t qualify under s 170A to reduce potential trauma.
One example is s 158(2)
of the Act which allows for evidence to
be given by means of closed circuit television or similar electronic
media. In addition
to the interpretation not leading to an absurdity,
the three interrelated riders favour this construction. The purpose
of s 170A
was held to be
‘
to
ensure the paramountcy of the best interests of the child complainant
in criminal proceedings in which the child testifies.’
[13]
That
is also the context of the provision. Constitutional validity is not
threatened by this approach. In my view, accordingly,
Hewitt
is wrongly decided and should not be followed.
[11]
I
conclude that the use of the intermediary in this matter gave rise to
an irregularity. What, then, is the effect of this? The
law in this
regard is clearly stated in
S
v Naidoo
,
[14]
as follows:
‘
But
irregularities vary in nature and degree. Broadly speaking they fall
into two categories. There are irregularities (fortunately
rare)
which are of so gross a nature as
per
se
to vitiate the trial. In such a
case the Court of Appeal sets aside the conviction without reference
to the merits. There
remains thus neither a conviction nor an
acquittal on the merits, and the accused can be re-tried in terms of
sec. 370
(c)
of
the Criminal Code. That was the position in
Moodie's
case,
in which the irregularity of the deputy sheriff remaining closeted
with the jury throughout their two hour deliberation
was regarded as
so gross as to vitiate the whole trial.
On
the other hand there are irregularities of a lesser nature (and
happily even these are not frequent) in which the Court of Appeal
is
able to separate the bad from the good, and to consider the merits of
the case, including any findings as to the credibility
of witnesses.
If in the result it comes to the conclusion that a reasonable
trial Court, properly directing itself, would
inevitably have
convicted, it dismisses the appeal, and the conviction stands as one
on the merits. But if, on the merits, it cannot
come to that
conclusion, it sets aside the conviction, and this amounts to an
acquittal on the merits. In such a case sec. 370
(c)
of
the Code does not permit of a re-trial. That was the position
in
Naidoo's
case, in which the failure to swear an
interpreter at one stage, resulted in certain evidence being regarded
as inadmissible.’
The
reference in the quote to ‘
Naidoo’s
case’ is to a different matter.
[15]
There the reasoning was that an interpreter is a witness who gives
evidence as to what the person testifying is saying in a different
language. If the interpreter is not sworn in, his or her evidence is
inadmissible. The evidence given through an unsworn interpreter
was
thus excluded from consideration. The court held that, after
‘separating the bad from the good’, there was not
sufficient admissible evidence to support a conviction.
[12]
It was submitted that the irregularity in
the present matter was so severe as to
per
se
vitiate the proceedings at the
trial. No motivation was given for this submission other than that
the use of the intermediary was
not provided for in s 170A.
There is a two stage enquiry as to the effect of this irregularity.
[13]
The
first stage is to determine whether, as was the case in
Naidoo
,
the irregularity resulted in the evidence of P being inadmissible. If
so, the balance of the evidence cannot sustain any of the
convictions. This is because P was the sole witness to each of the
counts. In
Dayimani
,
[16]
Plasket
J found, by analogy with the position of an interpreter, that the
evidence thus adduced was inadmissible:
‘
This
being so the magistrate erred fundamentally in allowing the evidence
of the complainant to be given with the assistance
of an
intermediary.
Section 170A
of the
Criminal Procedure Act simply
had
no application in this matter and could not have been invoked. It
follows, in my view, that this defect renders the evidence
of the
complainant inadmissible. See in this regard the analogous case of
S
v Sydow
2003
(2) SACR 302 (C)
at
308
e
in
which it was held that evidence given by a complainant through
an interpreter who had not taken the oath in terms
of Rule 68 of the
Magistrates' Courts Rules was inadmissible. See, too,
S
v Booi and Another (supra
at
para [29]) in which Mogoeng JP held that, where intermediaries had
been improperly appointed because they were not qualified
and the
magistrate had not complied with the requirements of s 170A, the
accused had not been given a fair trial and their
convictions had to
be set aside.’
[17]
[14]
It
can be seen that Plasket J relied on the approach in
S
v Sydow
[18]
and
S
v Booi & another
[19]
for his finding. He
did
not analyse the respective roles of an interpreter and an
intermediary. In
S
v QN
,
[20]
I had occasion to conduct this analysis. In that matter, the issue
was whether the failure of an intermediary to take an oath amounted
to an irregularity. It was held that it did not, disagreeing with the
finding in
Booi
in this regard. In arriving at that conclusion, the following was
said:
‘
The
analogy between an interpreter and an intermediary breaks down when
one considers the situation where a case is conducted in
English,
with an English-speaking accused, a child witness whose home language
is likewise English, and an English-speaking presiding
officer and
lawyers. There is then no question of interpretation. A question
is posed and where appropriate the intermediary
reformulates it
for the child in non-threatening language. The child then answers.
All of this is done in a language common to
all the participants in
the process. On what basis in that case can it be said that the
intermediary must be sworn? Clearly there
is no reason for that to be
done. The “requirement” that this be done cannot
therefore flow from anything inherent
in the role of the
intermediary. Once it is recognised that the witness must give her
own answers to questions, however and by
whom they have been
formulated, the intermediary is not conveying the evidence to the
court as does an interpreter. These examples
illustrate the point
that the analogy between the two is a false one.’
[21]
[15]
I
see no reason why the use of an intermediary in the present matter
resulted in the evidence given by P being rendered inadmissible.
To
that extent, I respectfully disagree with
Dayimani
.
The answers given were hers. In that regard, her evidence complied
with s 161 of the Act.
[22]
The use of the intermediary in reframing questions put to her was not
said to have affected her evidence in any way. There was
no
indication from the record or submission by the appellant that he had
been prejudiced or that cross-examination of P had been
curtailed. In
this regard, in
K
v The Regional Court Magistrate NO & others
,
[23]
an early challenge was mounted to the constitutionality of s 170A.
In dismissing the challenge, the following was said:
‘
[T]he
Judge or magistrate who presides at the trial controls the
proceedings and is able to see to it that the intermediary carries
out his function properly and without prejudice to the accused.’
[24]
There
is no indication that this did not take place in the present matter,
despite the fact that the intermediary should not have
been
appointed.
[16]
Because
the evidence of P was not rendered inadmissible, the final question
to determine is whether the irregularity resulted in
a failure of
justice.
[25]
Although no
special entry was made concerning the irregularity, the principles
remain the same. The basic principle is that an
accused must be
fairly tried
[26]
and
be afforded an opportunity to adduce and challenge evidence.
[27]
Despite being offered the opportunity to point to any failure of
justice, the appellant could point to none. Neither can I find
any.
In the event, the evidence of P was properly taken into consideration
by the magistrate and must be taken into consideration
in the appeal.
[17]
The appellant, however, raised a further
irregularity. This relates to the circumstances under which an
affidavit under s 212(4)
of the Act was admitted into evidence
in the face of an objection on the part of the appellant’s
legal representative at
the trial. The affidavit dealt with form J88,
the medical report of the doctor who examined P on 14 June 2008. The
prosecutrix
claimed to be handing in the J88 by consent. At that
stage, there was no s 212(4) affidavit covering it. The
appellant objected
and made it clear that he did not consent. The
prosecutrix then attempted to motivate its acceptance into evidence
on the basis
that the doctor in question was deceased. The matter
stood down. On resumption, the prosecutrix informed the Court that
she had
established that the doctor was not deceased. There were two
doctors with the same surname, one of whom had died. The doctor who
compiled the J88 had not been subpoenaed as a result of the incorrect
belief of the prosecutrix that it was he who was deceased.
She
requested an adjournment so as to subpoena the doctor to testify.
[18]
On resumption, the prosecutrix indicated
that the doctor had deposed to an affidavit in terms of Section
212(4) covering the J88
and sought to hand it in. The appellant
objected, saying that certain of the facts, let alone opinions,
contained in the J88 would
be challenged and that certain matters
required an explanation from the doctor. The magistrate then made a
ruling accepting the
J88 in terms of s 212(4) and saying that
the appellant could not oppose this but must indicate what it is that
he objects
to and that it is his duty to lead evidence to rebut that
aspect.
[19]
Section
212(4) allows for the use of an affidavit relating to a fact which is
established by an examination or process requiring
a skill. The mere
production is ‘
prima
facie
proof of such fact’. The effect of this was spelt out in
Ex
parte Minister of Justice: In re R v Jacobson & Levy
,
[28]
as follows:
‘“
Prima
facie
”
evidence
in its more usual sense, is used to mean
prima
facie
proof of an issue the burden
of proving which is upon the party giving that evidence. In the
absence of further evidence
from the other side, the
prima
facie
proof becomes conclusive
proof and the party giving it discharges his
onus
.’
In
a case, such as the present one, where only the doctor was present at
the examination and no evidence could be led in rebuttal
of his
observations, the use of s 212(4) places an accused person in an
invidious position. The
prima facie
proof will lead
ineluctably to conclusive proof. It is presumably for that reason
that s 212(12) was enacted. The material
parts say:
‘
The
court before which an affidavit or certificate is under any of the
preceding provisions of this section produced as
prima
facie
proof of the relevant
contents thereof, may in its discretion cause the person who made the
affidavit or issued the certificate
to be subpoenaed to give oral
evidence in the proceedings in question . . .’.
[20]
In
view of the approach I take to this matter, it is not necessary to
consider whether, and if so under what circumstances, a court
can
refuse to accept an affidavit which complies with s 212(4) into
evidence. This may well implicate a constitutional issue
and was not
debated before us.
[29]
The
situation which unfolded before the magistrate in this matter is one
which
par
excellence
called for the exercise of her discretion to require the doctor to
give oral evidence. This is so even if the approach was couched
in
the form of an objection to the handing in of the s 212(4)
affidavit. It was clear that the appellant wanted to challenge
the
doctor on aspects of his report. There is no indication that the
doctor was not available or could not be subpoenaed; on the
contrary,
he had deposed to the s 212(4) affidavit that very day. I can
only conclude that the magistrate did not exercise
any discretion at
all to have the doctor testify. Her failure to exercise a discretion
clearly amounts to an irregularity. The
admission of the J88 without
the appellant being afforded the opportunity to cross-examine the
doctor would have led to a failure
of justice. In the circumstances,
the J88 should have been excluded from consideration when evaluating
the evidence.
[21]
With those two issues out of the way, it
can be considered whether, excluding the J88, the evidence supports
the convictions. The
State called P and four other witnesses. P
testified to two incidents which took place in 2006, one which took
place in 2007 and
three which took place in 2008. She lived with her
aunt [N…….], the wife of her maternal uncle, and her
cousin [M…..]
at South Beach, Durban from at least 1993 until
January 1999, when she was ten years old. She then went to live with
the appellant
and a person to whom the appellant was married in the
customary sense after her husband, a cousin of the appellant, had
died. P
regarded this person as her stepmother. I shall refer to her
as P’s stepmother or the appellant’s wife. The three of
them lived at Avoca. P’s biological mother died in March 1999.
[22]
In the first incident in 2006, the
appellant came to P’s bed in the early hours of the morning.
Her stepmother was away, visiting
her mentally ill father. The
appellant woke P and told her to remove her panties. When she asked
why she should do so, he threatened
to kill her. She then complied.
He told her to open her legs and she again asked why she should do
so. He told her not to keep
asking questions otherwise he would kill
her. When she opened her legs, the appellant inserted his finger into
her vagina and said
he was testing to see if she was a virgin. He
asked where her hymen was but she did not know what he was referring
to. He then
told her to put on her clothes and left.
[23]
About a week later, when her stepmother had
not yet returned, the appellant again came to her in the early hours
and told her to
take off her panties. She again enquired why she
should do so and he again told her not to keep asking questions. She
did so and,
at his instruction, opened her legs. He got on top of her
and inserted his penis into her vagina and had sexual intercourse
with
her. Afterwards he left and told her not to tell anyone. The
next day he took her to visit her paternal grandmother at KwaMashu.
She did not tell anyone then because, she said, she was scared of the
appellant because he was always hitting her and threatening
to kill
her if she did so. She could not remember the date in 2006 when these
incidents took place.
[24]
She first reported these two incidents in
2007 to one [N…….], on their way to the local shop. On
her return from the
shop, her cousin [M…….] noticed
that she was crying and P then told her of these incidents. She asked
[N……]
and [M…….] not to tell anyone
because she was scared.
[25]
In November 2007, also while her stepmother
was away, the appellant again came to P’s bed and woke her.
When she asked why
she should wake, he told her just to wake up, take
off her panties and open her legs. She kept on crying and asking why
she should
do so and he threatened to kill her if she continued to
refuse. She complied and he inserted his penis into her vagina. He
finished,
told her to dress and said he was sorry and that he did not
know what was going on with him. He asked her to forgive him and she
agreed to do so. Later that morning he could see that P was still
angry and he kept asking for her forgiveness. He told her to
bath.
The appellant and P then went to KwaMashu and found [N……]
and others there. She told [N…….] that
her father had
raped her again. She again asked [N……] not to report it
to the elders.
[26]
One day, while visiting her grandmother at
KwaMashu, she decided to go to South Beach to stay with [N……]
because there
were no children at KwaMashu. The appellant never
allowed her to visit [N……] or to stay there. Whilst
there and after
her cousin [M…..] took a bath, P asked her if
[M…..] was ever inspected for virginity by her father. [M……]
asked what she meant and P kept quiet. [M……] then asked
if P had been inspected by the appellant and P said that
she had. P
made [M……] promise not to tell [N……] but
[M…..] nevertheless did so. P was scared
because she knew that
the appellant would hit her for having ‘escaped’ and
going to stay there. When [M…….]
told [N……],
[N……] started crying and asked P whether the appellant
had inspected her. She replied in
the affirmative and [N……]
then asked if the appellant had had sexual intercourse with her. In
her frightened state,
P denied this, despite persistent questioning
by [N……]. Her stepmother and then the appellant phoned
and asked where
she was. She told them she was going with [M…..]
and [N…..] to her grandmother’s house at KwaMashu.
[M…..]
and others accompanied her.
[27]
When she got there, she was leaning at the
front door and another cousin, [N…….], emerged and
asked if she had ever
been raped by the appellant. [N……]
had been inside when [N…..], P’s paternal grandmother
and other family
members were talking about P. She initially denied
that the appellant had raped her but [N……] persisted
and P eventually
admitted it. [N……] then entered the
house. Her uncles were returning from the appellant’s house and
[N…..]’s
husband suggested that they meet the next day.
The planned meeting took place but the appellant, despite having
undertaken to attend,
was absent. P was asked to tell her story
whereupon [N…….] and her husband said that she should
stay with them at
South Beach. This took place in April 2008 just
before the schools reopened.
[28]
On 9 June 2008, P was to write an
examination. The appellant was waiting for her by the school and said
that her stepmother was
sick. P said that he should approach the
school authorities for permission for her to leave early that day.
They went into the
school and she told one Mr Sullivan about this. Mr
Sullivan sent the appellant to fetch his identity book. The appellant
left her
at school. She left early and went to Avoca. She saw that
her stepmother was not well but her stepmother said that she was
going
to visit P’s grandmother who was also unwell and left.
When P told the appellant that she was going to leave, he closed the
door and tied her hands and feet with rope. He then struck her with
his fist, causing a cut below the left eye and a cut to her
leg. She
did not count the number of blows he delivered but estimated that it
was about five blows. Her stepmother saw blood coming
from her eye
and asked what was happening. The appellant claimed that nothing had
happened and that he had struck P because she
was falsely accusing
him.
[29]
The appellant then said that P should phone
her paternal grandmother and tell her that she was fine. She did so
as she was scared
of the appellant. She was then told to phone her
aunts for the same purpose. When she phoned [N……], P
could tell
that she was at the police station. [N……]
asked where she was and P told her that she was at Avoca. [N……]
said that she and others were coming with the police. P asked her not
to come with the police because she was scared. [N……]
terminated the call and she, her husband and [M…..] went to
Avoca to fetch P, without the police. The appellant saw them
coming
and took P out of the house and hid. The front door was open but
eventually they left. This was at about 19h00 and, after
they left,
the appellant made P and her stepmother sleep in the bushes with him
in case they returned.
[30]
After waking while it was still dark, the
appellant took them to Ndwedwe, a rural area, where they stayed with
the [N…..]
family. P was still in her school uniform from the
previous day and some children at Ndwedwe brought her clothes to
change into.
The following day the appellant told P that he wanted to
take her to the place where he used to stay with his mother and
grandmother.
He took her to a derelict house and, brandishing a
knife, told her to undress. It appeared to P that some herbal
ointment had been
sprayed onto the knife. The appellant laid his
jacket on the floor and told her to lie on the jacket, whereupon he
inserted his
penis into her vagina. While raping her, he made noises
as if he was enjoying himself. She kept crying when he finished and
moved
away. He then burnt incense and reported to the ancestors that
P was from the lady [N……’s] house who had passed
away. Again, she was scared and told no-one on her return.
[31]
The following day her stepmother was to
leave. P wrote a note saying that the appellant had done it again.
She mouthed to her stepmother
that the appellant had done it again
and slipped the note into her bag. Her stepmother suggested that she
ask the appellant about
this and P told her not to do so because he
would kill her. After her stepmother left, the appellant told her
that they were going
to see a grandmother but again took her to the
derelict house. He told P that she was pregnant and that he would
have sexual intercourse
with her so that she had a miscarriage. He
also told her that if her stepmother returned the next day, P must
ask for coke because
she was thirsty and the appellant would give her
tablets. He then raped her. After this they went to visit the
grandmother and
then boarded a bus back to [N……’s]
house. She slept with the other girls there and took out a book and
wrote
another letter.
[32]
The next day, Friday, her stepmother
returned. She told P to take a bath but P only washed her feet and
face. The three of them
returned to Avoca. That night P took the
letter and tried to escape by climbing through the bathroom window
but it was too small.
She had wanted to give it to [N…….’s]
father next door to give to [N…….]. The appellant saw
the
letter and read it. He would not tell her stepmother what it
said. He took P outside and asked her who she wanted to give the
letter
to. The appellant tore it up and kept threatening to assault
her. They went back into the house and to bed.
[33]
On Saturday, the appellant told P’s
stepmother to go to KwaMashu to tell her paternal grandmother that
they were back. P cried
and begged her not to go but the appellant
insisted that he would do nothing to P. When her stepmother left, the
appellant closed
the door and said to her ‘This is what you’ve
been always wanting’. He went to the toilet and while he was in
the toilet she escaped through a window in another room. She found a
child and asked her to call her mother. She asked the mother
to call
the police. The police arrived and she asked them to take her to
hospital. They wanted to take her to an adult family member
and she
directed them to where her stepmother was at KwaMashu. Her stepmother
was not there so they took her to [N……].
They went to
the police station and thereafter to Addington Hospital where she was
examined by a doctor.
[34]
The
evidence of P concerning the incidents is that of a single witness.
It is trite that such evidence must be viewed with circumspection.
It
is clear that the magistrate did so. However, caution must not be
equated with the abandonment of common sense.
[30]
As regards a 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.’
[31]
With
this in mind, the evidence of P must be evaluated.
[35]
On
appeal P was criticised for not reporting the incidents until after a
considerable time had elapsed. When she was asked about
this in
cross-examination, her steadfast answer was that, living as she was
with the appellant, she feared him due to his threats
to harm or kill
her if she reported them. Her fear of the appellant, and that of
others in his family including his traditional
wife, lends credence
to the testimony of P in this regard. It is further borne out by the
fact that, when the appellant became
aware that P had in fact
disclosed this to family members, he lured her from school so as to
keep her under his control and assaulted
her, thus forming the basis
for count 4. It is further confirmed by his general behaviour in
preventing her from having free social
interaction with other family
members and, in particular, with [N……] with whom she
had lived from 1993 until 1999.
In
Monageng
v The State
,
[32]
insight into the old chestnut as to a delay in reporting the rape was
given:
‘
It
is further widely accepted that there are many factors which may
inhibit a rape victim from disclosing the assault immediately.
Children who have been sexually abused, especially by a family
member, often do not disclose their abuse and those who ultimately
do
may wait for long periods and even until adulthood for fear of
retribution, feelings of complicity, embarrassment, guilt, shame
and
other social and familial consequences of disclosure.11
Significantly, the newly passed Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007 provides, in s 59, that ‘in
criminal proceedings involving the alleged commission
of a sexual
offence, the court may not draw any inference only from the length of
any delay between the alleged commission of such
offence and the
reporting thereof’. Raising a hue and cry and collapsing in a
trembling and sobbing heap is not the benchmark
for determining
whether or not a woman has been raped. There was thus nothing unusual
about the complainant’s behaviour and
her explanation for not
immediately reporting the appellant is plausible.’
These
remarks apply equally to the present matter. It is more than
understandable that she delayed reporting the incidents.
[36]
P’s evidence further has a ring of
truth. She was not prone to exaggeration. As regards the 2007 rape
incident, her evidence
was that, after he had committed the rape, the
appellant said that he did not know what had come over him and asked
her to forgive
him. If she had set out to falsely implicate the
appellant, she could easily have added further incidents. In
addition, the two
incidents in 2008 forming the basis for count 5
arose out of the appellant taking P to Ndwedwe, far from home, when
he was aware
that [N……] wished to report him to the
police. The fact that, on their arrival the following day, she was
still wearing
her school uniform, lends support to her version of
events. This evidence was not challenged. The appellant undertook to
attend
the family meeting when the allegations emerged but failed to
do so. His explanation does not ring true. Finally, when P eventually
reported matters to the police, the appellant disappeared for
approximately one month without telling anyone at the time or
offering
a credible explanation at the trial. That is not the conduct
of an innocent person.
[37]
P’s evidence as to the events
surrounding the incidents was corroborated by that of the other
witnesses. The appellant submitted
that there were contradictions
between the witnesses. This is correct. It would be surprising if at
least some contradictions did
not emerge when a number of witnesses
recall events which took place in the past. The magistrate carefully
considered these and
correctly found that, taken as a whole, the
evidence of these witnesses was acceptable and corroborated that of
P. In fact, had
the evidence of all the witnesses perfectly
coincided, this would appropriately have raised suspicions that the
witnesses had collaborated
to harmonise their evidence for the trial.
Excluding the reference to the J88, the magistrate committed no
misdirections in assessing
the evidence of the State witnesses.
[38]
As against this, it must be considered
whether the evidence of the appellant was reasonable possibly true.
Here, counsel for the
appellant could make no submissions in favour
of the appellant’s evidence. Material contradictions emerged
between what was
put on his behalf to the State witnesses and what he
testified to. Further, such contradictions emerged between his
evidence in
chief and what he said in cross-examination, especially
when problems with what he had said in his evidence in chief were
pointed
out to him. One example of his evidence concerning [N……]
will suffice to illustrate this. It was put on his behalf
that the
reason why he did not want P to visit [N…..] and [M….]
was that [N….] was a drug dealer and [M…..]
was a user
of prohibited substances. When asked in his evidence in chief why his
relationship with [N…..] was not good,
he said that [N…..]
would phone P, request her to go to [N…..] and that, when P
returned, she would argue with everyone
at home. This was never put
to P or [N…..]. When asked why his wife would lie in her
testimony against him, he claimed that
she was scared of [N…..]
and that, when the appellant was arrested, [N…..] asked people
to attack the homestead causing
his wife (and P’s stepmother)
to flee to the rural areas. None of this was put to his wife or
[N…..]. There were numerous
other serious contradictions and
extreme improbabilities in his evidence. It was utterly fanciful and
correctly rejected as false
by the magistrate.
[39]
The
approach after assessing the evidence on both sides was dealt with in
S
v Chabalala
,
[33]
to the following effect:
‘
[W]
eigh
up all the elements which point towards the guilt of the accused
against all those which are indicative of his innocence, taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accused’s guilt’.
Applying
this test, it is clear that, disregarding the J88, the evidence
proved beyond a reasonable doubt that the appellant
was guilty
on all five counts.
[40]
As regards the sentences, the appellant
raised no quibble with those which were imposed for the first four
counts. This was proper
because, in those matters, no misdirections
could be pointed to and neither do any of them induce any sense of
shock. If anything,
they appear to be on the light side. Making the
whole of the two sentences for counts 2 and 3 run concurrently with
each other
was, in my view, overly lenient on the part of the
magistrate. However, these sentences are not subject to interference
by a court
on appeal. I have no criticism of the sentences imposed
for counts 1 and 4.
[41]
The
sentence of life imprisonment imposed for the fifth count was done
pursuant to the provisions of Section 51(1) read with schedule
2 of
the CLA Act. The only basis upon which a court may impose a lesser
sentence than that prescribed is if substantial and compelling
circumstances are found to exist in terms of Section 51 (3) of the
CLA Act. The test which must be applied has been restated on
many
occasions. It was set out clearly in
S
v Malgas
.
[34]
In
essence, a sentencing court is obliged to take into consideration the
normal principles of sentencing and consider what sentence
would be
imposed but for the provisions of the CLA Act. If there is disparity
between the two, and an injustice would result from
the imposition of
the prescribed sentence, substantial and compelling circumstances
exist. This exercise was not undertaken by
the magistrate in
considering the sentence on this count. Her failure to do so amounts
to a misdirection. As a result, this court
is at large to consider an
appropriate sentence
de
novo.
[42]
As I have said, it is my view that the
effective sentence for counts 2 and 3 is too light. It would
therefore not be appropriate
to take the effective twelve years’
imprisonment for those two rapes as the yardstick as to what should
be imposed for the
two rapes on count 5. The personal circumstances
of the appellant must be taken into account. He was 48 years old at
the time,
had been married by customary rites for 15 years, had
passed grade 7, had two biological daughters and supported
three other
dependants, had skills as a mechanic and tailor and
earned some R3 000 from these two activities. For the purposes
of sentence,
he was a first offender.
[43]
However, despite this, there are numerous
aggravating circumstances when regard is had to the nature of the
offences in count 5.
The appellant abused the trust of his own
biological daughter who should ordinarily have been able to look to
him for nurture and
protection. In addition, not only did he abuse
the trust but clearly attempted to protect himself by severely
restricting the circumstances
under which she could relate to friends
and relatives. In other words, he curtailed her lifestyle and social
development at a critical
developmental stage of her life in his own
interests. He thus interfered in the normal, healthy, social
development of a young
adolescent woman. He clearly treated her as
his chattel and, on occasions when it became apparent that she might
have disclosed
his misdemeanours to others, gave effect to his
threats to act with violence. She functioned for years in a
climate of fear.
The effect of this was to imprison her within the
relationship to the extent that she was not even free to disclose his
conduct
to those whom she trusted. It took a massive action of the
will and a clear sense of desperation on her part to do so.
[44]
As
concerns the interests of society, rape is a scourge on our society.
It is characterised by violence and the effects on
the victim
are severe, long-lasting and difficult to overcome. This is all the
more so when it is committed by a person in a position
of trust such
as the appellant. The very social fabric of human intercourse is
negated by a father raping his daughter. If she
cannot look to him
for protection and support, it places doubt on the trustworthiness of
all. Fortunately for P, she can look to
[N…..] and her cousins
for the nurture which was so clearly lacking in her relationship with
the appellant. In
S
v Baloyi (Minister of Justice & another Intervening)
,
[35]
Sachs J said:
‘
In
my view, domestic violence compels constitutional concern in yet
another important respect. To the extent that it is
systemic, pervasive
and overwhelmingly gender-specific, domestic
violence both and reinforces patriarchal domination, and does so in a
particularly
brutal form.’
Although
this was stated in the context of spousal violence, these words have
equal application in the present matter.
[45]
There is, however, another aspect to
consider regarding the interests of society. It is that society
benefits from productive members
who use the opportunity to
rehabilitate themselves. There are two pieces of evidence which
suggest that the appellant may be a
candidate for rehabilitation.
First, he was convicted for robbery in 1988 and sentenced to seven
years’ imprisonment. On
4 July 1991 he was released on parole.
He clearly learned from this experience and was not convicted of this
offence or any other
offence until the present one. In addition, he
recognised the depravity of his behaviour when he told P that he did
not know what
was wrong with him and asked her forgiveness. This
affords some hope of rehabilitation. In my view there are prospects
for this
and the appellant should be given this opportunity.
[46]
Taking all of these factors into account,
it is my view that a sentence of twenty-four years’
imprisonment on count 5 would
be appropriate. Since that is
substantially less than life imprisonment, I find that substantial
and compelling circumstances warrant
a downward deviation from the
prescribed sentence. It is also my view that, taking into account the
cumulative effect of the sentences,
this would be an appropriate
effective period of imprisonment. The order made in terms of
s 52
of the
Criminal Law (Sexual Offences
and
Related Matters) Amendment Act 32 of 2007
, that the particulars of
the appellant will be entered in the register of sexual offenders was
not challenged. It will therefore
stand.
[47]
In the result, the following order is
granted:
1.
The appeal against the convictions of the
appellant is dismissed.
2.
The appeal against the sentences on counts
1 to 4 is dismissed.
3.
The appeal against the sentence imposed on
count 5 is upheld and the following sentence is substituted for that
imposed by the magistrate:
“
On
count 5, the accused is sentenced to 24 years’ imprisonment.
The sentences imposed on Counts 1 to 4 are directed to run
concurrently with this sentence.”
4.
In terms of
s 52
of the
Criminal Law
(Sexual Offences
and Related Matters)
Amendment Act 32 of 2007
, the particulars of the appellant is to be
entered in the register of sexual offenders.
5.
The sentences will run with effect from 2
December 2010.
GORVEN
J
I
agree, and it is so ordered.
BALTON
J
DATE
OF HEARING: 6 October 2015
DATE
OF JUDGMENT: 22 October 2015
FOR THE
APPELLANT: PM Mkumbuzi, instructed by the Durban Justice Centre.
FOR
THE RESPONDENT: S Singh, instructed by the Director of Public
Prosecutions, Pietermaritzburg, KwaZulu-Natal.
[1]
Criminal
Law
(Sexual
Offences and Related Matters) Amendment Act 32 of 2007
.
[2]
Criminal
Law Amendment Act 105 of 1997
.
[3]
On
16 December 2007 the
Criminal Law
(Sexual
Offences and Related Matters) Amendment Act
abolished
the common law crimes of rape and
crimen
injuria
and replaced them with statutory offences. Counts 1, 2 and 3
predated this but the Act applies to count 5.
[4]
There
is no indication why the State did not rely on the CLA Act for
counts 2 and 3.
[5]
S
v Dayimani
2006
(2) SACR 594
(E).
[6]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009 (4) SA 222
(CC).
[7]
Paragraphs
115 and 116.
[8]
Paragraph
130.
[9]
Constitution
of the Republic of South Africa, 1996.
[10]
S
v Hewitt
Review
case no. DR349/11, KwaZulu-Natal Local Division, Durban.
[11]
Cool
Ideas 1186 CC v Hubbard & Another
2014
(4) SA 474
(CC) para 28.
[12]
References
omitted.
[13]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009
(4) SA 222
(CC)
para
130.
[14]
S
v Naidoo
1962
(4) SA 348
(A) at 354D-H.
[15]
S
v Naidoo
1962
(2) SA 625
(A).
[16]
S
v Dayimani
2006
(2) SACR 594
(E).
[17]
Paragraph
10.
[18]
S
v Sydow
2003
(2) SACR 302
(C)
at
308
e.
[19]
S
v Booi & another
2005
(1) SACR 599
(B)
.
[20]
S
v QN
2012
(1) SACR 380
(KZP).
[21]
Paragraph
22.
[22]
Section
161 of the Act reads:
‘
A
witness at criminal proceedings shall, except where this Act or any
other law expressly provides otherwise, give his [or her]
evidence
viva voce
.’
[23]
K
v The Regional Court Magistrate NO & others
1996
(1) SACR 434
(E).
[24]
A
t
448
e
-
f
.
[25]
S
v Felthun
1999 (1) SACR 481
(SCA) at 485I–486A.
[26]
S
v Xaba
1983 (3) SA 717
(A) at 728D.
[27]
S35(3)(i)
of the Constitution of the Republic of South Africa, 1996.
[28]
Ex
parte Minister of Justice: In re R v Jacobson & Levy
1931
AD 466
at 478.
[29]
See
S
v Sithole
2013 (1) SACR 298
(GNP);
Director
of Public Prosecutions v Modise & another
2012 (1) SACR 553
(GSJ); Du Toit et al
Commentary
on the
Criminal Procedure Act
p24-36B
- 24-36C.
[30]
S
v Sauls & others
1981
(3) SA 172
(A) at 180G.
[31]
Ibid
at
180E-F.
[32]
Monageng
v The State
(590/06)
[2008] ZASCA 129
(01 OCTOBER 2008) para 24
[33]
S
v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[34]
S
v Malgas
2001
(1) SACR 469
(SCA) para 25.
[35]
S
v Baloyi (Minister of Justice & another Intervening)
[1999] ZACC 195
;
2000 (2) SA 425
(CC) para12.