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[2014] ZAGPPHC 503
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Msimango v S (A910/2013) [2014] ZAGPPHC 503 (15 May 2014)
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
A910/2013
DATE: 15 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
JOHN
WILLIAM
MSIMANGO
........................................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1 The appellant
appeals against his conviction on a charge of raping the complainant
during 2007. No more particulars of the date
of the alleged offence
were given in the charge sheet. The complainant was born on 6
December 2000.
2 The complainant
lived with her aunt in a house in Leslie. Other persons who lived in
the house were the complainant’s slightly
older brother and the
appellant, whom the complainant described as her uncle. Another
woman, Ms S[...], had stayed in the house
but had left the household
before the date of the alleged offence. Ms S[...] had had an intimate
relationship with the appellant
but this relationship had apparently
been terminated and Ms S[...] had left the house before the date of
the offence.
3 The complainant
gave evidence through an intermediary. She said that the rape took
place during an evening when her aunt was away
from the house at a
braai. She said that she and her brother were sleeping on the floor
of the same room in which the appellant
habitually slept. The
appellant slept on a bed. the appellant had woken her, undressed her
and himself, threw her on the bed and
raped her. Thereafter, she
said, she did not tell anybody although she said that the appellant
had not threatened her to gain her
silence.
4
The evidence of the complainant’s aunt was that the braai in
question had taken place on 16 December 2006. Ms S[...], who
was
called as a witness by the court a
quo,
also
went to the braai. This date is a public holiday and falls, every
year, after the public schools have broken up for the Christmas
holidays.
5 The complainant
suffered from urinary incontinence. The evidence was that this
condition preceded the alleged rape. On 30 July
2009, ie some 19
months after the alleged offence, the complainant’s aunt took
her to the clinic in a nearby town for treatment
for her
incontinence. The clinic nursing assistant, Ms Giyani, testified.
Nurse Giyani asked the complainant in the presence of
her aunt
whether there was somebody who was having sexual intercourse with
her. The complainant ignored the question. At Nurse
Giyani’s
request, the complainant’s aunt left the room and the
complainant then, on further questioning, told Ms Giyani
that her
uncle had undressed her and had had sexual intercourse with her. On
questioning from Ms Giyani, the complainant told her
that the
incident of rape which she had described had taken place about three
to four day after the school she attended had reopened
and that the
appellant had raped her several times.
6 Ms Giyani sent the
complainant for a medical examination. It was found that the
complainant’s hymenial membrane was broken
and that the vaginal
orifice could be seen simply by opening the labia majora. The
conclusions of the medical practitioner were
embodied in a form J88.
The form J88 was admitted and the medial practitioner did not
testify. He found that there was “sexual
abuse - ongoing”.
But the medical practitioner also found, and recorded on the form
J88, that there was no evidence of “recent”
vaginal
penetration. As he did not testify, this apparent contradiction was
not explained.
7 The complainant’s
aunt testified. The complainant told her aunt that she had been raped
only once by the appellant and that
this act of rape had taken place
on 16 December 2006. Whether this date was specifically mentioned or
whether the complainant identified
the date by reference to the braai
I have mentioned is unclear.
8 The appellant
himself gave evidence. He denied the allegations of rape. The
regional magistrate held in regard to the appellant’s
evidence
that he could not
... say outright
that the accused was a lying witness. If his evidence is viewed
together with the totality of the evidence... weighs
so heavily
against the accused that the court has no difficulty in rejecting his
denial.
9
In my view the regional magistrate was clearly wrong in coming to
this conclusion. I think that the evidence before the court
a
quo
was
unsatisfactory. I say this because broadly the complainant did not
spontaneously report the alleged rape of 16 December, her
reports of
the abuse she had suffered were made for the first time long after
the
alleged incident and
were contradictory in several important respects.
I point to the
following:
9.1 There is a
discrepancy between what the complainant told her aunt and what she
told Nurse Giyani about the number of times the
appellant had
allegedly raped her. I do not think that this discrepancy can simply
be brushed aside on the basis that young children
can be expected to
be confused about details. If the complainant had been abused more
than once by the appellant, or by anyone
for that matter, I should
have expected that she would disclose this to her aunt. She had no
reason to minimise the guilt of the
man or men who had abused her.
9.2
There is a problem with the date 16 December 2006. Firstly, the
charge alleged that the rape had taken place in 2007. If the
evidence
before the prosecutor had been that she had been raped on the night
of the braai, one would have expected the charge to
be much more
specific; indeed to have identified that very date. But secondly, and
more importantly, 16 December is in the holidays,
not in the school
term. That date was, on the evidence, the only day on which the
complainant had been left alone with the appellant
and on which the
appellant would thus have had the opportunity to commit the crime
with which he was charged. Added to this is
the admitted conclusion
of the medical practitioner who examined the complainant that the
complainant was when he saw her enduring
ongoing
sexual
abuse. This indicates that this little girl had possibly been
regularly raped by someone other than the appellant.
9.3 The complainant
did not report the rape to her closest female relative, her aunt, or
anyone else until she was directly asked
for this information by
Nurse Giyani. Had Ms Giyani not probed the question, it is likely
that the complainant would not have disclosed
the fact of the abuse
at all.
9.4 The complainant
gave evidence on 14 February 2010. That was over three years, on the
complainant’s aunt’s evidence,
after the alleged rape.
She was a single, juvenile witness. The complainant, as I have said,
gave evidence through an intermediary.
These circumstances reduced
the ability of the trial court to evaluate the complainant as a
witness. Indeed, the regional magistrate
did not evaluate the
complainant as a witness at all but concluded, as I have pointed out,
that the conviction was founded on what
the regional magistrate
found, in effect, were overwhelming probabilities againstthe
appellant. In this context I think that for
the reasons I have given,
the regional magistrate ought to have found that the complainant was
a less than satisfactory witness.
The factual underpinning of the
finding on probabilities was absent and the finding can thus not
stand.
10
In my view, therefore, the conviction itself cannot stand. It is a
tragedy that justice cannot be done for this little girl but
as I see
it the quality of the evidence leaves us no choice. The court a
quo
ought
to have found that there was a reasonable doubt whether the appellant
raped the complainant. The appellant must be given the
benefit of
that doubt. I would set aside the conviction and sentence imposed
upon the appellant and substitute the following:
The accused is found
not guilty and discharged.
NB Tuchten
Judge of the High
Court
13 May 2014
I agree. It is so
ordered.
C Pretorius
Judge of the High
Court
13 May 2014