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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2013] ZAKZPHC 14
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S v Zungu (SH 105/09) [2013] ZAKZPHC 14 (5 March 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH
AFRICA
REVIEW
NO: R124/13
CASE
NO: SH 105/09
In
the matter of:
THE
STATE
.............................................................................................................................
APPLICANT
V
BUYANI
NTSHO ZUNGU
....................................................................................................
RESPONDENT
SPECIAL
REVIEW JUDGMENT
D.
PILLAY J
[1]
This is a special review in terms of s 304 (2) of the Criminal
Procedure Act 51 of 1977 (CPA). This section requires a magistrate
in
the trial court to refer a matter to the High Court if the trial is
not in accordance with justice.
[2]
The accused was charged with two counts of rape. In count one the
complainant N was a girl of eight years. In count two the
complainant
W was a girl of seven years. Both incidents happened on 22 November
2008 in Dutch location, Escort Kwazulu-Natal. The
accused, a male of
eighteen years, was arrested the following day. He was released on
warning with conditions. After several adjournments
the trial
eventually commenced on 5 July 2010. The accused was convicted on
both counts on 29 June 2011. He was held in custody
pending the
submission of pre-sentencing reports by a social worker and probation
officer based in the Department of Social Development,
Escort.
[3]
The child complainants testified. Notwithstanding their youthfulness
they were model witnesses. They corroborated each other
wherever
possible. There were no inconsistencies within their evidence or
between each other's versions.
[4]
Their evidence was that they were alone in the home of W watching
television. The accused arrived. He took each of them by the
hand to
an adjoining bedroom. He pushed N to the floor in between the wall
and the bed. He stuffed a cloth in the mouth of the
complainants. He
threw W onto the bed and raped her. Each time N tried to peep at what
was going on, he shoved her down. W bled
as a result of the rape.
After raping W he told her to wash herself and her panty. She left
the room but did not carry out his
instructions. Instead, she hid her
panty behind the house. After she left, the accused raped N. N
defecated in her panty. She kept
it in her pocket. The accused
threatened them not to report the incident to anyone. It also emerged
that this was not the first
time the appellant raped W.
[5]
The complainants were afraid that the accused would stab them hence
their reluctance to report the rape. Later when N's aunt
returned
from church she noticed that N walked slowly and awkwardly. The aunt
probed. N extracted a promise from her aunt that
she would not tell
the accused. Thereafter N reported the rape to her. The two of them
went to the home of W. W also got an assurance
that their aunts would
not report the matter to the accused. Then W also gave her account of
the rape.
[6]
The appellants reported to the doctor that the accused had raped
them. Both children were medically examined. The doctor who
prepared
the J88 medical report confirmed that both complainants had injuries
consistent with rape. In the case of W she also had
old scars which
corroborated W's evidence that she had been raped previously. The
complainants' aunts corroborated the complainants
about how the rape
was reported. W's aunt testified that her relationship with the
accused was not good because he took her belongings
without her
permission. N's aunt also testified that N had reported to her that
the accused had raped her previously. N's aunt
testified that the
accused was a quiet child with whom she had no quarrel.
[7]
The accused was the cousin of W. Their mothers were sisters. He
denied raping the complainants. He alleged that he was at home
taking
care of his ailing grandfather. His grandfather corroborated him
saying that the accused was with him the entire day and
that he had
not left home at all. The learned magistrate rejected the accused's
evidence and his alibi on the evidence of W's aunt
who testified that
she had seen the accused at her home that day before she left for a
funeral.
[8]
Seldom in a rape case are witnesses so clear and convincing. This
case is all the more remarkable considering that the principal
witnesses are two children aged seven and eight. The accused was well
known to the complainants. Therefore identifying him was
not an
issue. Unsurprisingly therefore, the learned magistrate placed no
weight on the DNA results following the tests on the complainants'
panties. Preliminary tests were negative and no DNA comparison was
carried out. Commendably, the learned magistrate took care to
test
the complainants' ability to be truthful. Both legal representatives
were satisfied that they understood what it meant to
be truthful. The
complainants testified through an intermediary who was properly sworn
in. Procedurally too this was a model trial.
Predictably the learned
magistrate convicted the accused.
[9]
She adjourned for a pre-sentencing report. On resumption the social
worker testified that she interviewed the complainants.
Both of them
informed her that it was not the accused who had raped them but
another man by the name of Dikho. Dikho had threatened
to kill them
if they reported the rapes to anybody. The complainants were
recalled. They corroborated the social worker. They testified
that
Dikho knew the accused and it was at his suggestion that they
implicated the accused.
[10]
This is an extraordinary case. Notwithstanding the meticulous
application of the rules of evidence, truth remains elusive.
Were the
complainants lying the first time they testified or the second time?
Whatever their answer is, they have to live with
the consequences of
lying in court for the rest of their lives. Worse still, they and
whoever else might be responsible, have to
live with their
consciences knowing that a rapist might go unpunished.
[11]
In these circumstances I find that the proceedings in the
Magistrates' Court and the ensuing convictions were not in accordance
with justice. The only remedy is to quash the convictions in terms of
s 304 (2) (c) (i). The order I grant is the following:
The
convictions of the accused on both counts are quashed.
D.
Pillay J
I
agree.
Ploos
van Amstel J