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[2007] ZAWCHC 100
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S v Willemse (SS64/2007) [2007] ZAWCHC 100 (7 November 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
SS64/2007
DATE:
7
NOVEMBER 2007
In
the matter between
THE
STATE
and
JONATHAN
WILLEMSE
JUDGMENT
HLOPHE,
JP:
This
is the matter of the State versus Jonathan Xolile Petros Willemse.
The accused, Mr Willemse was about 45 years old at the time
of his
arrest in April 2006. He will be now anything between 46 and 47 years
old.
The
state preferred four counts of rape against the accused but it was
clear however during the course of the evidence that was
given by the
victim of this crime, the complainant, Nicole Titus* that the court
was dealing with three counts of indecent assault
and one count of
rape. That much was also abundantly clear in argument namely that
there were just three counts of indecent assault
and one count of
rape.
The
accused was represented throughout these proceedings before us by Mr
Buntting. The state throughout these proceedings was represented
by
Miss Allie. When the trial started all four charges or counts were
put to the. accused person. The accused person pleaded not
guilty to
each and every one of the four counts put to him. The plea of hot
guilty was communicated by Mr Buntting on behalf of
the accused
person and the accused person confirmed that the plea was in
accordance with his instructions.
Essentially
the state’s case against the accused was that in or about April
2006 and or at near Riebeeck West in the district
of Malmesbury the
accused did unlawfully and intentionally have sexual intercourse with
a minor who was about nine years old at
the time and her name was
Nicole Titus, his stepdaughter.
At
the start of the trial a number of orders were made by the court,
they were essentially by agreement between the parties. The
first
order was in terms of
Section 153(5)
of the
Criminal Procedure Act 51
of 1977
namely that the proceedings be held in camera, that order was
granted by the court.
The
second order which again was ordered by agreement between the parties
related to
Section 154(3)
of the
Criminal Procedure Act, i.e
. to
protect the identity of the minor child, the complainant. Thus it is
an order which this court made that the name of this minor
should not
under any circumstances be made public, be it in the Law Reports
or in the Newspapers. It should not under any
circumstances be made
public.
Furthermore
there was an order again which was made by agreement between the
parties relating to
Section 158(3)
of the
Criminal Procedure Act,
i.e
. that evidence be given by way of close circuit television. For
that reason the facilities in court number 15 of this division were
used. The final order was made in terms of
Section 170A
of the
Criminal Procedure Act relating
to the use of an intermediary, Miss
Gerda McQueen.
The
trial started and it proceeded smoothly. A number of witnesses were
called by the state in an attempt to bolster its case. In
my
judgement the evidence of other witnesses, not much turns on the
evidence of other state witnesses. The important evidence is
that
given by the complainant as well as the doctor. Furthermore I can be
bold even to suggest that their evidence can be totally
discarded as
with respect to the state advocate that evidence given by those state
witnesses does not take the matter any further.
What
was the evidence? We turn now to the evidence of the complainant. Her
evidence in-chief was to the following effect. The four
of them lived
together under the same roof. When I say the four of them 1 am
referring to the complainant herself, Nicole Titus,
her brother who
was known as Boetie, the accused Jonathan Xolile Willemse and the
accused girl-friend, the mother of Nicole. Those
four lived together
as a family under the same roof.
The
evidence Furthermore of the complainant was that there was nothing
amiss, there was nothing wrong as far as the relationship
between
them was concerned. It appears that at ail material times Nicole, the
complainant treated the accused as her father. In
deed she even
obeyed his instruction to accompany him to Wellington where she was
subsequently raped.
That
there was good ...(indistinct) in the family, that they lived
together as a family was corroborated by the accused: himself
as well
as the mother of the child Nicole, when she testified.
That
was corroborated even by the accused himself when he later testified.
Nicole
Titus told the court that on the day in question, the 16
th
of April 2006 she was asked by the accused person before us to
accompany him on a shopping spree to Wellington. Her mother and
her
brother Boetie were left behind and her mother was attending to
domestic duties such as cleaning the house, doing the washing
and so
on and so forth.
As
they boarded the train from Hermon to Wellington the train was full
and the accused person asked the complainant to sit on his
lap, which
she did. In fact it is common cause that she sat on the accused lap
for the duration of the journey from Hermon to Wellington.
When they
got to Wellington they naturally alighted from the train. The accused
thereafter asked her to accompany him and they
went to the bush. Her
evidence was furthermore that this bush was in fact an orchard and it
had a stream or a river.
When
they got there the accused asked the child to take off her clothes
and in particular it was her jersey, and she obeyed the
instruction.
T h e re after s he was co mmand ed to strip all her clothes, to take
off all her other clothes including her underwear
a nd pants. This i
nstruction was si m ilarly obeyed by the minor. Thereafter the
accused proceeded to have sexual intercourse
with the child without
her consent. In fact she even gave evidence that the accused
attempted to strangle her from behind by putting
his arm across her
neck and that was demonstrated.
The
complainant described in minute detail what the accused did to her.
Among other things the accused lay on top of her and made
the usual
movements which would normally occur when people are making love.
Furthermore she described that she was subjected to
pain as the
accused was sleeping with her. At the end of the day, at the end of
this rape incident the child said that she felt
dirty and there was
white stuff and the accused was responsible for that. This court is
prepared to take judicial notice of the
fact that the white stuff
must have been semen which came from the accused when he ejaculated.
The
child gave evidence furthermore that the accused person, Mr Willemse
threatened to kill her in the event of her telling anybody
what had
happened to her in the bush. She gave minute details of what the
threat was. According to her evidence the accused threatened
to kill
her and put her body in a black plastic bag and throw it down the
river so that it could be washed away by the river.
Quite
clearly her evidenee proceeded to say after the rape incident she
dressed up and thereafter they went shopping with the accused
person.
The accused according to her evidence bought a pie for the victim,
the complainant. After their shopping they hitch hiked,
got a lift
and they went back to her mother. The child went on to say in her own
words:
“Ek
het vuil gevoel
”,
she felt dirty. And she decided to have a bath, to wash her body. She
took off her panties or underwear and put it into
the washing basket.
She
was cross-examined at length regarding among other things why she did
not report the incident to her mother. And she gave a
credible
explanation of why she did not report the incident to her mother. The
brief and short, she was scared or terrified of
the accused. And if
one looks at the sequence or the chronology of the events one has no
reason but to accept that the child must
have been terrified or
scared of the accused person.
Furthermore
Nicole Titus gave evidence relating to the other incidents preceding
the rape in April 2006. She gave an account of
an Incident relating
to the use of finger by the accused person who inserted his finger
into her vagina. That was the first incident
and obviously the child
does not remember the date and the time and when this incident
occurred.
It
would seem that this is the incident whereupon the accused person put
Vaseline on his finger before inserting it into the child’s
vagina. On this occasion as well Nicole, the complainant did not tell
her mother.this was at the instance of the accused person.
The
second incident also similarly involved the use of a finger. If my
memory serves me well the mother of the complainant was present
but
she was sleeping at the time and therefore she could not possibly
have witnesses the incident because she was sleeping at the
time.
Again when the child was cross- examined she was very emphatic, she
did not tell her mother because she feared the accused
who usually
was present when her mother was ...(inaudible).
The
third incident involved the use of a toe. According to Nicole this
incident occurred and her mother was present when the toe
incident
occurred. Remarkably, Nicole Titus, notwithstanding the trauma which
these incidents must have caused to her gave very
good detail
relating to the toe- incident.
S
he told the cou rt that she was s lee pi ng between the accused and
her mother and she was busy doing her mother’s hair.
It was at
that time that the accused inserted his toe into her vagina. All
these three incidents, the first two involving the use
of a finger
and the third one involving the use of a toe occurred prior to the
rape incident which was on or about the 16
th
April 2006 and in Wellington.
Nicole
Titus was cross-examined at length. In my judgement she withstood
cross-examination. This was so notwithstanding her very
tender age,
namely she was about nine when the rape incident occurred.
Furthermore this was so notwithstanding undoubtedly the
trauma that
these incidents must have caused to her. I am satisfied that she gave
evidence in a cool, calm fashion and her evidence
may safely be
relied upon! Therefore there is no reason whatsoever to reject her
evidence. No basis it was argued existed for rejecting
it anyway.
I
am satisfied that she was a reliable and truthful witness and indeed
her evidence can be safely relied upon. There is absolutely
no basis
for rejecting her evidence particularly in the light of the history
which I outlined earlier on in this judgement. Just
to recap on that,
the evidence was very clear that there is no reason for the child to
falsely accuse her stepfather of such serious
crimes.
On
ail the counts, and this was the evidence of the accused, the child,
they all lived together happily as a family and the child
looked up
to the accused as her father. To the extent that Mr Buntting who
appeared for the defence argued that there were some
discrepancies
between the statement made for and on behalf of Nicole and her
evidence in court, that is entirely understandable.
For
example the accused person has been charged on four counts of rape
but the evidence is very clear that there was just one rape
incident.
Furthermore the child Nicole gave evidence that she didn’t know
the meaning of the word “
verkrag
”.
So quite clearly each time a finger or a toe or anything was inserted
into her vagina she regarded that as rape. With respect
to Mr
Buntting whatever discrepancies may exist between the statement that
the child made and her evidence in court can never be
material as to
warrant the rejection of her evidence in court.
Her
evidence was very clear and satisfactory evidence in court in ail
material respects. Accordingly the court finds that her evidence
was
credible and may be safely relied upon. Her evidence was furthermore
corroborated by the doctor, Dr
Cronje
who examined the child on the 16
th
day of April 2006. Dr Cronje came and testified in this court, I
think it was on Monday or on Tuesday. He was a district surgeon
at
the time attached to Malmesbury. He gave evidence of the fact that he
did in deed examine Nicole Titus on the day when the child
was
brought to him for examination. He confirmed that he is the author of
the J88 medical report which is before court how.
He
gave evidence-in-chief indicating that the history of the alleged
incident was outlined to him. by the child with the aid of
a social
worker and an adult. The doctor himself, Dr Cronje subsequently
examined the child and concluded that there were injuries
to her
private parts. The injuries were not fresh according to Dr Cronje,
they were not.fresh injuries. Therefore that rules out
the
possibility of any semen or blood being found by the doctor because
the injuries were not fresh.
According
the doctor he estimated that the injuries were anything between a
week and two, about a week to two weeks old. Dr Cronje
was
cross-examined at length by, well he was cross-examined by defence
council relating to his conclusions and/or observations.
A picture
which clearly emerges from his evidence is the following: The child
had sustained injuries to her private parts. This
was more than just
one injury, it was multiple injuries to her private parts. In fact
this is clear from
the
diagram on the J88, the diagram of the child’s private parts.
It is clear that there were multiple injuries to her vagina.
Furthermore
Dr Cronje confirmed that these injuries were consisted with being
inflicted by a blunt instrument such as a finger or
a toe or a penis
for that matter. This rules out with . ' respect the possibility of
the fact which was raised by Mr Buntting in
argument, it rules out in
my. view the possibility of these injuries having been inflicted on
the child whilst they were playing
with their private parts.
If
one accepts the old English saying that once bitten twice shy, Nicole
I have no doubt had she played with her private part and
got herself
injured she would never have done that again or allowed anybody to do
that again, it is just common sense.
Thus
a picture which emerges between the evidence of Nicole and the doctor
is the following. The child says on the day in questions
she was
raped by Jonathan, her stepfather and she gave detailed blow-by-blow
account of how that happened. There is clearly no
room for mistaken
identity because the child knows Jonathan Willemse as her stepfather.
Furthermore
no
suggestion was made whatsoever as to why the child would fabricate so
serious allegations against her stepfather.
The
evidence of the child, namely that she Was sexually abused is
confirmed and/or corroborated by Dr Cronje. Dr Cronje was at the
time
employed as a district surgeon, he had absolutely no interest in this
matter and clearly he had no reason to lie that the
child indeed was
raped if that was not so. Quite clearly on the evidence of Nicole and
that of Dr Cronje the child was raped and/or
sexually abused and the
author thereof is none other than the accused before this court.
What
does the accused have to say to this? In other words we turn now to
the evidence of the accused. His evidence at best is tad
amount to a
bear denial. What is remarkable about the evidence of the accused
person and that of Nicole is that it is essentially
similar but in
one respect. That in the judgement of the court is very remarkable
indeed. The accused conceded for example that
on the day in question
he together with Nico|e went shopping, they went to Wellington.
Nicole sat on his lap
:
because the train was full. His girlfriend as Nicole’s mother
and Nicole’s brother Boetie were left behind because
his
girlfriend was busy attending to domestic duties such as washing and
so on.
That
the purpose of the trip to Wellington was to do shopping for the
family. Furthermore it is common cause between Nicole and
the accused
that the accused bought a pie for Nicole. All of that is common cause
between Nicole and the accused, in fact it was
even corroborated by
Nicole's mother when she testified. The only difference between the
evidence of the child Nicole and that
of the accused is the fact that
Nicole points her finger at the accused as the person who raped her
and inserted the finger and
the toe in her vagina, and the accused
denies that.
In
the judgement of this court the accused defence can not reasonably
possibly be true. It is just nonsensical to say the least.
The
evidence of the child as well as that of Dr Cronje is very clear and
convincing and there is no reason to reject the evidence
of those two
witnesses in particular. The court is satisfied that the defence of
the accused must be rejected as not being reasonably
possibly true.
The onus in matters of this nature is on the state to prove its case
beyond any reasonable doubt.
The
unanimous finding of this court is that the state has succeeded in
proving its case against the accused beyond any reasonable
doubt. The
unanimous finding therefore of this court is that the accused is
guilty as follows:
FIRST
THREE
COUNTS
HE IS GUILTY OF INDECENT ASSAULT AND
THE
MAIN
COUNT BEING THE FOURTH COUNT THE COURT IS
UNANIMOUSLY
OF THE FINDING THAT THE ACCUSED IS
GUILTY
OF RAPE AS CHARGED
.
HLOPHE,JP