Lesala v S (CA & R 47/09) [2009] ZANCHC 34 (18 September 2009)

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[2009] ZANCHC 34
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Lesala v S (CA & R 47/09) [2009] ZANCHC 34 (18 September 2009)

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YES / NO
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape, Kimberley)
Case
Nr: CA & R 47/09
Case
Heard: 31/08/2009
Date
Delivered: 18/09/2009
In
the matter:
HENDRIK LESALA
Appellant
versus
THE
STATE Respondent
Coram:
Kgomo JP
et
Mjali AJ
JUDGMENT ON
APPEAL
KGOMO
JP:
The
appellant, a man of 31 years, was convicted in the Kimberley
Regional Court of the rape of a 17 year school girl at Delportshoop

and was sentenced to 10 years imprisonment. He appeals against both
his conviction and sentence.
The
appellant was a friend to the complainant’s brother and frequented
the complainant’s parental home which she shared with
her mother
and her brother Jacob. His initial visits were ostensibly paid to
Jacob but Jacob subsequently became a pretext to
gain access to
complainant. The appellant would, with the full knowledge and
apparent acquiescence of complainant’s mother
and Jacob, invite
the complainant to accompany him on errands which in the main were
meaningless or nonsensical like purchasing
a packet of cigarettes
whereas complainant was a non-smoker or buy a packet of dried potato
chips which he could in any event
have purchased and brought along
with him. Jacob never accompanied them but complainant’s friends
occasionally did.
On
the 1
st
August 2005, the date of the alleged rape, the appellant arrived at
the complainant’s home in a borrowed van. He outrightly
requested
the complainant to accompany him to the shops but it turned out that
the intention was really for them to attend a
braai/barbecue at the
home of the appellant’s police friend. The complainant, whether
she was abash or for whatever reason,
was unwilling to alight from
the vehicle which was parked next to the front door of the braai
house. As the vehicle had to be
returned to its owner the appellant
chose that its owner’s driver drop them off at a beerhall or
tavern. There is an immaterial
dispute in the evidence of the pair
on whether liquor was bought or consumed at any of these places.
The
complainant claims that she was raped in a piece of open veld behind
a clinic. The appellant to the contrary maintains that
he had
consensual sexual intercourse with her where he resides. In the
large scheme of things this dispute, which is not soluble
on the
evidence in favour of any of the disputants, is not a major factor.
After
the sexual encounter, which happened relatively late at night, the
appellant walked the complainant to her home whereat
he knocked on
the door. The complainant’s mother let them in. Appellant told
her something to the effect that he has brought
her daughter home.
In the presence of the three of them the complainant did not
complain to or report the alleged rape to her
mother nor did her
mother say anything, at least nothing that displayed her
displeasure.
There
was a lull from the 1
st
August 2005 until a month later on the 2
nd
September 2005. On this latter day the complainant was morose and
crying at her school where she was doing Grade 10. Her close
friend
and class mate, Marcelyn Van Schalkwyk, enquired what was wrong.
She goes on to say:
“Toe
wou sy (the complainant) my nie eerste sê nie. Ek het haar
gesoebat om my te sê, toe sê sy [sy] is die
vorige aand
ge-rape deur Hendrik (the appellant).”
Marcelyn told complainant to report the incident to her mother but
complainant would have none of that and did not furnish any
reason
to Marcelyn for her reluctance. Marcelyn informed complainant that
she was going to report the matter to her (Marcelyn’s)
aunt Ms
Lena Lesala, which she did the same day (02/09/2005).
Lena
Lesala urged Marcelyn to report what she had told her to
complainant’s mother but Marcelyn declined as complainant forbade

her to. Lena Lesala nevertheless reported the alleged rape to
complainant’s mother only on the 5
th
September 2005. That was the first time the parent learned of her
daughter’s reported rape ordeal. She immediately summoned
her
daughter and Marcelyn home (to Delportshoop) from Barkley West where
they were visiting relatives. Upon their return she
wanted to know
from her daughter
“hoekom
het jy my nie gesê jy is ge-rape nie my kind? --- Toe sê
sy vir my ma ek was bang om jou te sê.”
A charge was laid with police on the same day and the appellant was
arrested two days later on the 7
th
September 2005.
An
incident of some significance occurred approximately a month before
the alleged rape. Without the knowledge and consent of
her mother
or the knowledge of Jacob the complainant accompanied the appellant
to a hamlet called Campbell between Delportshoop
and Kimberley where
they put up overnight at the appellant’s relative’s home. They
shared a room. The dichotomy in their
evidence is that appellant
says they shared a bed and were intimate whereas complainant
maintains that appellant slept on the
couch and she slept on the
floor. The following day they proceeded to a town called Douglas
because the appellant suggested
that he wanted to show complainant
where her grandmother stays. Complainant in fact did not know where
her grandmother stayed
and did meet her.
The
complainant made a good impression on the Regional Magistrate who
found her testimony to be reliable. He expressed himself
in these
terms (translated by me):
“
As
far as the complainant is concerned I was reasonably impressed with
her as a witness. In my view there is nothing adverse in
her
demeanour that can be held against her. In the main she adhered to
her account of the events. She did not dramatize her evidence
nor
did she exaggerate matters against the accused. On the contrary when
her evidence was called into question she cried, thus
demonstrating
that she was genuinely traumatised by the experience. No reasons
were proffered why the complainant would implicate
the accused
falsely. This aspect by itself, it should be said, is not decisive.
People sometimes do things for sinister reasons.
However, when
regard is had to the good relationship that existed between the
accused and the complainant and their respective
families it is
inconceivable that complainant would the next moment bring a trumped
up charge against the accused. The accused
belatedly surmised that
his predicament was caused by the fact that he impregnated
complainant and that she committed an abortion
as the reason for
being falsely incriminated. But this aspect was never put to the
complainant.”
[10] I
am not persuaded that the complainant was as good a witness as the
Magistrate made her out to be. Sometimes the circumstances
and
probabilities militate against the trustworthiness of her evidence or
parts thereof. In
S
v Heslop
2007(1) SACR 461(SCA) at 470e-g the court had this to say:
“It
is cause for concern to find laudatory epithets applied by a trial
court to witnesses when the record shows that their performance,

judged by the written word, was obviously far from satisfactory. In
such a case an appeal Court will more readily interfere with
the
findings of the trial court as to the weight to be attached to the
witnesses' evidence and its ultimate conclusion based on
such
findings.”
The
Magistrate failed to detect that whereas the appellant and the
complainant’s brother, Jacob were initially close friends
Jacob
was gradually relegated to the background and was ultimately
sidelined as appellant patiently forged a close relationship
with
the complainant as already shown hereinbefore. This excerpt from
the complainant’s mother’s evidence-in-chief bears
this out:
“
Hoe
gereeld het Hendrik by u huis gekom? --- Hy het begin saam met my
seun geloop. Die oudste seun van my.
Wat is u seun se
naam? --- Jakob Ratel.
En
hy en Doreen – het hulle met tye saam gery? --- Toe raak Hendrik
nou vir Doreen-goed gewoond daar by die huis.
Weet
u of hulle al by tye saam iewers was? --- Meneer, ek was by `n
partytjie gewees daardie naweek. Wat ek by die huis kom toe
hoor ek
Hendrik het vir Doreen by die huis kom haal, hulle is Douglas toe.
Toe weet ek nie.”
Even
though it cannot be said that complainant’s mother encouraged or
approved of the closer bond that was developing between
the
appellant and her daughter she could not have missed the
substitution of her siblings in the life of the appellant. She

should have nibbed the questionable association in the bud. When
the incident in question took place the complainant was 17
years old
and the appellant 31. The disparity in age screamed at her that
they were not of the same peer group. The fact that
complainant’s
mother says she regarded the appellant as her son does not explain
the relegation of Jacob to the level of a
spectator. The
relationship may have started out as platonic but from the evidence
before us it cannot be said with any measure
of probability that the
perceived platonic relationship did not progress beyond that.
The
Magistrate was either unmindful of the relationship described above
or he attached insufficient weight to the evidence that
establish
that situation. For instance he uses the disparity in ages of the
protagonists incorrectly. He remarked as follows:
“
Die
beskuldigde [is] `n persoon wat glad nie in die protuurgroep val van
klaagster nie. Hy is `n volwasse persoon. Hy het alreeds
kinders by
twee ander vrouens. Dit is seker nie onmoonlik dat hy met die
klaagster sou loop nie, maar dit is basis nie die normale

portuurgroep wat `n mens met die beskuldigde sou assosieer nie.”
He
concluded later that therefore they could not have been lovers. The
Magistrate seems to have overlooked the fact that appellant,

complainant and Marcelyn are
ad
idem
that the pair were frequently in each other’s company. On other
occasions complainant’s (girl) friends joined them in their
jolly
rides. It must be added that all state witnesses contradict the
appellant that there was a love relationship between him
and
complainant. The point to be made here really is that the
Magistrate was remiss to intimate or suggest that the age disparity

is a pointer against the existence of a love relationship. Love
relationships between couples with disparate ages are legend.
The
complainant says that before and during the course of the alleged
rape she objected against the appellant imposing himself
on her, she
thrashed about, screamed several times and even bit the appellant on
the shoulder in an effort to stave off being
violated. He warned
her if she screams again
“dan
gaan ek sien wat gaan hy doen.”
The appellant did not sustain any injury as a result of being
bitten.
The
ordeal that complainant says she went through is incongruent with
what her mother observed when she came home. She says the
appellant
knocked on the door and announced himself. The door was closed but
unlocked and she allowed him in.
Appellant then said he had
brought the complainant home. “
Toe
sê ek hom nee, orraait. Toe lê en slaap ek.”
Complainant says she did not report because she feared being
scolded. In other words she did not fear being harmed by the
appellant if she reported him.
In
her evidence-in-chief complainant says nothing about crying or her
mother shouting at her. However, under cross-examination
(conducted
in English) the picture changes somewhat. She says:
“
And
that is when he informed your mother that he brought you home and you
went straight to the room and he stood there and had a
little chat
with your mother --- Nee, wat my ma my vra van waar af kom ek, het hy
geantwoord. Hy het nie gesê van waar af
kom ons nie, maar hy
het gesê
hy het vir my huis toe gebring en hy het buitekant die deur gestaan
wat hy saam met my ma gepraat het. En my ma het vir my geskel
en aan
gegaan, toe is dit wat hy gesê het hy het vir my huis toe
gebring.
So your mother
shouted? --- Ja, my ma het my geskel omdat ek so laat huis toe gegaan
het.
Did you say anything
or try to explain to your mother why you were late?
---
Nee,
ek het gehuil maar toe sê hy vir my ek moet stil bly en ek het
net in gegaan en ek het niks vir my ma gesê nie.
When
your mother was shouting, you cried? --- Ja, ek het gehuil.”
(My emphasis).
The
Magistrate says it may have faded from the mother’s memory that
her daughter cried when the matter surfaced and was reported
to the
police on the 5
th
September 2005, a month after the nocturnal knock on the door. I
cannot envision how the mother could have forgotten such a

distressing situation. If complainant cried she certainly would
have asked both parties on the spot to explain themselves.

Complainant says she did not report the alleged rape because her
mother would have scolded her. Her mother did that in any event,
in
accordance with her version under cross-examination, as emphasised
above. I am inclined to hold that the mother’s version
must
prevail because when the complainant was summoned from Douglas by
her mother on the 5
th
September 2005 and asked why she did not report the rape incident to
her the complainant said she feared being scolded. It is
therefore
to be doubted that complainant cried or was scolded by her mother
that evening. In this regard the Magistrate erred
as well.
The
Magistrate has set a lot of store by the complainant’s attempt to
commit suicide. Why she did so is not entirely clear
from the
record because the cause was not fully ventilated. The prosecutor
enquired from her whether anything dramatic involving
her life took
place after the sexual encounter with the appellant. She said she
attempted ending her life by swallowing an unspecified
heap of
tablets (“hoop pille”) in January, apparently of 2006. It could
be speculated that the attempted suicide had to do
with the alleged
rape. However, it remains mere conjecture. Complainant says she,
unwisely in my view, refused counseling.
It is not known whether,
if adduced, the psychological evidence would have assisted to
establish a link. This
ex
post facto
reconstruction is unhelpful. The Magistrate should have seen the
evidence in that light.
As
regards the dispute in the evidence of complainant and appellant on
where the sexual encounter took place, whether in the open
veld or
at the appellant’s home, I find no probability either way.
Appellant’s witnesses testified about an unidentified
woman that
they saw in his company entering his residence. It does not mean
that that woman was the complainant. What it does
suggest is that
the appellant is not averse to taking a woman to his home, if regard
is also had to his rendezvous with complainant
at Campbell. I am
not convinced that the complainant would have baulked at
accompanying him to his home as she seems to have
won his trust but
she certainly won his friendship.
The
Magistrate is correct that the complainant could be criticized for
having taken a month to report the incident. He is also
correct
when he remarked:
“
Aan
die ander kant is dit hoegenaamd nie vreemd wanneer gekyk word na die
gewone sake wat voor die Hof dien nie. Dit is dikwels
so dat `n
Klaagster getraumatiseer is deur `n voorval en dat sy dit dan later
onder druk van `n maatjie soos hierdie geval, van
Schalkwyk, uit kom
met dit wat gebeur het.”
In
Monageng
v State
[2008]
JOL 22596
(SCA), unreported,
Maya
JA
had this to say at paras 23 and 24:
“
[23] Much
was made by the appellant’s counsel of the complainant’s apparent
ability to act normally after the rape and her delay
in reporting it.
It has been firmly established in a number of studies on the impact
of violence, including rape, against women
that victims display
individualized emotional responses to the assault. Some of the
immediate effects are frozen fright or cognitive
dissociation, shock,
numbness and disbelief. It is therefore not unusual for a victim to
present a façade of normality.
[24] 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. Significantly,
the newly passed
Criminal Law (Sexual Offences and Related Matters
Amendment Act 32 of 2007
) provides, in
s59
, 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.”
Every
case must be treated on its own merits. In this matter the
complainant, then 17 years old, informed Marcelyn that she was
raped
by appellant the previous day (“die vorige dag”). Marcelyn was
certain and emphatic about this. That is why Marcelyn
got confused
when she established during the trial that the incident actually
took place on the 1
st
August 2005 and reckoned that complainant made the report to her on
2
nd
August 2005. A month prior is far removed from a day before. The
complainant could not have made a mistake. She may have tried
to
save face, but this still amounts to embroidery.
The
Magistrate was correct in finding that the appellant lied in certain
respects. One such instance is that the complainant
was carrying
his child and aborted it. Complainant says she had her monthly
menstrual cycle when the sexual encounter took place
on the 1
st
August 2005 and once more when she was examined by a doctor one
month later (on 05/09/2005) when the charge was laid. On the
facts
of life, even though no medical evidence was presented, this would
be a Ripley’s Believe It or Not phenomenon if complainant
was
pregnant.
A
second aspect on which appellant lied blatantly is his vulgarity to
the effect that complainant’s mother once caught them
in the
sexual act at her house and merely commented that “die teef is
mondig” (the bitch has come of age). However, a court
cannot
convict an accused merely because he or she is disposed to be
mendacious. See:
S
v Steynberg
1983(3) SA 140(A) and
S
v Mtsweni
1985(1) SA 590(A) at 593I – 594D. The correct approach has been
authoritatively set out in
S
v Chabalala
2003(1) SACR 134 (SCA) at 139I – 140A in these terms:
“
The
correct approach is to weigh 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. The result may prove that one scrap of evidence or
one defect in the case for either party (such as the failure
to call
a material witness concerning an identity parade) was decisive but
that can only be an ex post facto determination and
a trial court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing it in
the context of
the full picture presented in evidence.”
See
also
S
v Van Aswegen
2001(2) SACR 97 (SCA) at 101a-c (para8).
This
case is a costly reminder that parents must not entrust the safety
of their children with adults under dubious circumstances.
The
appellant may not have raped the complainant but he certainly
exploited her sexually. The words of
Beyers
JA
in the seduction case of
Bull
v Taylor
1965(4) SA 29 (A) at 35A-B come to mind :
“
A
man who has sexual relations with a virtuous young school-girl can
surely not be heard to say that he has not led her astray.
That the
respondent in the present case did indeed lead the appellant astray
is evidenced by the latter's subsequent behaviour.
After the first
act of intercourse she used occasionally to stop at his home on her
way to school, there to have further intercourse
with him. It could
in these circumstances be said of her, as it was of the plaintiff in
de
Stadler v Cramer
,
1922 CPD 16
at p. 19, that she 'has thus gone still further along the
wrong path into which he has led her'.”
As
Slomiwitz
AJ
said in
S
v Kubeka
1982(1) SA 534 (W) at 538G that we “subscribe to the view that in
the search for the truth it is better that the guilty [accused]

should go free than that an innocent [one] should be punished.” On
that basis the appellant is given the benefit of the doubt
and must
walk.
The
appeal succeeds. The appellant’s conviction and sentence are set
aside.
________________________
F
DIALE KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I concur:
________________________
G
N Z MJALI
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
Appellant : Adv J J Cloete
On
Behalf of:
THE
LEGAL AID BOARD
For
the Respondent: Adv J MABASO
On
behalf of:
DIRECTOR
OF PUBLIC
PROSECUTIONS, KIMBERLEY