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[2012] ZAKZDHC 5
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S v Nkosi (AR 139/06) [2012] ZAKZDHC 5 (8 February 2012)
IN THE KWAZULU-NATAL HIGH
COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
CASE
NO: AR 139/06
In
the matter between:
HERBERT
SIPHO NKOSI
…......................................................................
APPELLANT
and
THE
STATE
….........................................................................................
RESPONDENT
JUDGMENT
Date: 08 February 2012
PLOOS VAN AMSTEL J
[1] The appellant in this
matter was convicted by a regional magistrate on 27 August 2003 on a
charge of rape. The charge against
him was that during September 1998
and at Esikhaweni he unlawfully had sexual intercourse with a 12 year
old girl without her consent.
The magistrate referred the matter to
the High Court, where Combrink J confirmed, in terms of s 52 (which
has since been repealed)
of the
Criminal Law Amendment Act 105 of
1997
that the conviction appeared to be in accordance with justice.
After hearing argument on sentence the learned judge sentenced the
appellant to life imprisonment. The appeal before us is against the
conviction and sentence.
[2] The case for the
State was as follows. At the time of the incident, in September 1998,
the complainant, her brother and her
parents lived in the appellant’s
home with him and his family. She was 12 years old at the time. One
evening, after the others
had gone to bed, the complainant was busy
collecting her books in the kitchen, where she had been studying. The
appellant entered
the kitchen and asked her to give him some cake.
She asked him what he was talking about, whereupon he pulled her
towards the cupboard,
made her lean against it, took her panties off
and had sexual intercourse with her. When a door banged somewhere in
the house he
stopped, warned her not to tell anybody, and walked
away. A few days later, early in the morning, she was sweeping the
sitting
room when the appellant again approached her, removed her
panties and had sexual intercourse with her. He again warned her not
to tell anyone.
[3] The complainant and
her family moved out of the appellant’s home on 1 December
1998, some three months after the incidents.
Some ten months later,
in October 1999, the complainant wrote a letter to her mother in
which she told her what the appellant had
done to her. Both her
parents read the letter and discussed the contents with her. Her
father asked her if she would be willing
to repeat her allegations in
front of the appellant, and she agreed. Her parents took her to the
appellant’s house, where
she related her story in the presence
of the appellant and his wife. Her father asked the appellant if the
allegations were true
and he said “Well, that indeed did
happen”. His wife burst into tears and the complainant and her
parents left shortly
after that.
[4] In his evidence the
appellant denied that he had had sexual intercourse with the
complainant, and he denied that he had admitted
to it. He confirmed
however that the complainant and her parents had come to see him and
that she alleged that he had raped her.
He said he was hurt and
surprised by the complainant’s allegations against him and that
the subsequent meetings were designed
to restore the relationship
between the two families.
[5] There are strong
indications in the evidence that the appellant had raped the
complainant. It seems unlikely that such a young
girl would have had
the courage to confront the wrongdoer in the presence of his wife and
her parents if nothing of the sort had
happened. The medical evidence
also confirmed the presence of a healed tear on the hymen, which was
stated to be in keeping with
a forceful penetration.
[6] There are however
other considerations which concern me. The magistrate reminded
himself that the cautionary rule should be
applied with regard to the
complainant’s evidence as she was a single witness and a child.
There are several reasons in my
view why it cannot be said that her
evidence was satisfactory in all material respects.
[7] The most important of
these is that she stated in her statement to the police that the
appellant had raped her on three separate
incidents, whereas she said
in her evidence that there had been only two incidents. She must also
have told her mother that there
had been three incidents because this
is what was recorded in the mother’s statement to the police.
This is not merely a
case of writing three instead of two. The third
incident is described as follows in the mother’s statement:’
The third
incident occurred while my daughter was washing utensils
after supper she then told me that Sipho came again and took off her
panty
and inserted his panty (sic) inside my vagina (sic) but she
further said she did not report because she could see that Sipho was
going to hit her and that we would be running shot (sic) of
accommodation.’ Inspector Ngqulungu, who took the complainant’s
statement, confirmed that the complainant had told her of three
separate incidents. This is a very material contradiction which
causes grave concern. The third incident referred to in the
statements seems to have been a complete fabrication.
[8] Another concern
relates to the fact that the complainant first reported the alleged
rape to her mother some ten months after
they had left the
appellant’s home. In that time she also did not mention the
incidents to any of her friends or her brother.
One can understand
why the complainant would have been reluctant while they still lived
in the appellant’s house to report
to her parents what had
happened. But they moved out in December 1998 and she only informed
her mother of the rape in October 1999.
The matter was only reported
to the police in November 1999. There is no satisfactory explanation
on the record for the delay.
[9] Further difficulties
relate to her evidence that the second incident took place in the
dining room, whereas she later said that
it had happened in the
sitting room; her denial that she watched the television program
‘Generations’ with the rest
of the family in the evening,
whereas her mother said she did; the improbability that the appellant
would have raped the complainant
in the kitchen at approximately 9pm
when anybody could have come into the kitchen as the inter-leading
door did not lock; her mother’s
evidence that according to the
complainant the appellant had followed her to the toilet and locked
the bathroom door, which was
not her evidence; her evidence that the
appellant had threatened to hit her, whereas she had told her mother
that he had threatened
to kill her; the complainant told her parents
that the appellant had given her money to keep quiet, which she said
she did not
remember; coupled with the fact that by the time the
complaint’s family left the appellant’s home the
relationship
between the two families had broken down.
[10] Unfortunately the
record of the proceedings before the magistrate does not enable one
to evaluate these difficulties properly.
Attempts were made on a
previous occasion to reconstruct the record. The appellant thereafter
contended that the record remained
inadequate. We were informed by
counsel that this court, as it was constituted then, rejected that
contention and directed that
the appeal should proceed. It seems fair
to assume that the court directed that the appeal should proceed on
the record as it stood
because it was not possible to improve the
record by further attempts at reconstructing it, which counsel
informed us is the case.
[11] The evidence of the
complainant’s mother as to what transpired at the appellant’s
home when he was confronted was
apparently not audible on the
recording and was not transcribed. The answers to questions in
cross-examination as to why she took
so long to report the matter to
the police and what eventually caused her to report the matter were
also not transcribed. The same
applies to questions relating to her
police statement, in which she mentioned three incidents, the
television programs which the
complainant watched and the fact that
the other members of the two families were also up early so that the
complainant could not
have been alone with the appellant. These were
material questions and we don’t know what the answers to them
were.
[12] A further matter
which is puzzling is that the complainant’s father was not
called to testify. His evidence would have
been very material with
regard to the alleged admission by the appellant and the subsequent
meeting between members of the two
families.
[13] I do not believe
that in the light of all these difficulties it can be said that the
appellant’s guilt was established
beyond a reasonable doubt.
[14] In those
circumstances I propose that the appeal should succeed and that the
conviction and sentence be set aside.
_______________________
PLOOS VAN AMSTEL J
_______________________
MOKGOHLOA
J
I
Agree:
_______________________
KOEN
J
I
agree and it is so ordered.
Appearances:
For
the Plaintiff
:
Mr.
H. K Gunase
Instructed
by :
Ravin Singh Asheena Singh & CO
c/o
Govindasamy & Pillay
Pietermaritzburg
For
the Defendant :
Mr. R. du Preez
Instructed
by
:
The Director
of Public Prosecutions
Pietermaritzburg
Date
of Hearing :
01 February 2012
Date
of Judgment :
08 February 2012