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[2024] ZAECMKHC 52
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S v Mali (CC36/2022) [2024] ZAECMKHC 52 (29 February 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, MAKHANDA
HELD IN BHISHO
CASE
NO.
: CC36/2022
DATE
:
2024.02.29
In the matter between
THE STATE
and
NKOSENKULU
MALI
Accused
J U D G M E N T
LAING
A J
The
accused has been charged with crimes allegedly committed in the
period of December 2020 until February 2021 at Caweni, Needs
Camp,
within the area of East London.
Nature
of the charges
Count
1 pertains to the contravention of
section 22
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, read
with section 94 of the Criminal Procedure Act 51 of 1977 (‘CPA’).
The accused was charged with having exposed
his genitals to the
complainant, M, who had been ten years old at the time.
Count
2 pertains to
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
[1]
,
read with
section 94
of the CPA. The accused was charged with
having raped M by having sexual intercourse with her,
per
vaginam
,
without her consent and against her will.
The
accused pleaded not guilty to both counts and declined to make a
statement outlining the basis of his defence.
The
case for the state
I[…]
P[…]
The
first witness for the state was I[…] P[…]. She is a
16-year-old learner in grade nine. On 20 February 2021,
she had
been watching a sports match at a nearby field and when returning
home, she had met up with another learner, A[…]
M[…],
who asked her whether she had heard what had happened to the
complainant, M’. She was advised to ask M directly,
which she
did, to learn that the accused had exposed his genitals to the
complainant. Apparently, this had happened in his
shack and had
happened on several occasions. When I[…] asked M why she
had not informed her mother about this, M said
that she was afraid
that her mother would beat her. M had been upset.
Later, I[…] heard her mother, K[…]
P[…],
[2]
say that M had been raped by the accused.
Under
cross-examination, I[...] confirmed that she had told her mother
about what M had said to her. After her mother said
that M had
been raped, the latter had confirmed to I[...] that this was indeed
so.
S[…]
M[…]
The
next witness was S[…] M[…], who is a 17-year-old
learner in grade eight. She testified that she had been
watching television with her friends sometime during an afternoon in
February 2021, when one of her friends, E[…], had asked
the
complainant why she had lifted her skirt. M had denied this,
saying that it had been the wind. She went on to say
that the
accused had showed her his penis, at which one of the group asked her
to describe it, which she did. Everyone had
been shocked.
S[…]
admitted, during cross-examination, that there had been much banter
amongst her friends at the time that they were all
watching
television. At some point, E[…] had said to M, that she
had showed her buttocks to the accused, which she
had refuted, saying
that the accused had showed her his penis. S[…]
confirmed that her friends had been shocked to
hear this.
A[…]
M[…]
The
state then called A[…] M[…], who is a 16-year-old
learner in grade ten. She testified that she had been
with her
friends, watching television, on an afternoon in February 2021.
E[…] had asked M why she had shown her panties
to the accused,
to which she had retorted that it had been the wind that had lifted
her dress. Soon afterwards, M said that
the accused had showed
his penis to her. When A[…] had asked M whether she had
told I[...], the former said that she
had not because it would be
reported to her mother, who would give her a hiding.
On
the following day, A[…] had met I[...], returning from a
sports match. She had asked I[...] whether she had heard
from M
that the accused had showed his penis to her. I[...] had been
surprised and had said that she would tell her parents.
A[…]
indicated that the accused is her next-door neighbour.
The
complainant
The
following State witness was the complainant herself. M
testified in camera. She stated that the accused used to
show
his penis to her on the occasions when she had walked past his
shack. He would always be smiling at her.
On
the day in question, M had walked past the accused with her friend
E[…], who had run on ahead when her mother had called
her.
The accused had offered her R5,00; when M had entered the yard to
accept the money, the accused had grabbed her, pulled
her inside his
shack, and thrown her onto his bed. He had unbuckled his belt,
lifted her dress, lowered her panties, and
climbed on top of her.
He had then inserted his penis into her vagina and proceeded to rape
her.
At
the sound of his grandmother’s voice, the accused had stopped
and ran away. M said that she had then returned to
her home to
wash her body; she had been bleeding from her vagina. The
accused had only raped her once, she said.
M
did not tell her mother because she had been afraid that her mother
would beat her. However, she said to S[…] that
the
accused had showed his penis to her. Her mother heard about the
incident and confronted her about it, whereupon M told
her what had
happened. She subsequently accompanied her mother to the police
and to the hospital, where she was examined.
The complainant
admitted that she had felt very bad afterwards, she still felt
depressed.
In
cross-examination, M said that she would sometimes be with her
friends when the accused had exposed himself. Her friends
would
run ahead, leaving her behind; it was then that the accused used to
show her his penis. She also mentioned that her
friend, E[…]a,
would sometimes borrow the accused’s cellphone. This had
contained pictures and videos of people
engaging in sexual acts.
During
the rape, said M, the accused had stopped her from crying out by
pushing a strip of cloth into her mouth. The accused
had warned
her at the time, too, that he would kill her if she talked about the
incident. She had not mentioned these things
during her
evidence-in-chief because they had slipped her mind.
Dr
Yandiswa Mnyanda
The
State called Dr Yandiswa Mnyanda, who had examined the complainant at
the Cecilia Makiwane Hospital on 22 February 2021.
She
testified that M had indicated to her that she had been raped by a
man in the neighbourhood on many occasions during the preceding
month; the latest incident had occurred three days earlier. After her
examination of the complainant, Dr Mnyanda had concluded
that there
was redness and swelling of the labia, urethra, and hymen, suggesting
trauma. A fresh tear of the hymen suggested recent
trauma; multiple
clefts suggested previous trauma.
To
questions from the court, Dr Mnyanda confirmed that her findings were
strongly suggestive of sexual penetration of the vagina.
The
possibility of an infection could not be excluded in relation to the
white discharge from the complainant’s vagina.
Her
remaining injuries, however, were not indicative of an infection.
Application
for admission of hearsay evidence
The
state proceeded at this stage, to apply for the admission of a
statement made by the mother of the complainant, K[…],
to a
police officer. Subsequent thereto, she had passed away.
The defence opposed the application.
The
Court dismissed the application after having considered the factors
listed under
section 3(1)(c)
of the
Law of Evidence Amendment Act 45
of 1988
. The probative value of the statement did not warrant
its admission. In the present matter, the state’s case
rested primarily on the evidence of a child, requiring the court to
treat such evidence with circumspection. The inability
to
cross-examine the mother of the complainant, by reason of her
passing, prejudiced the accused. It was not in the interest
of
justice to admit the statement in question.
Consequently,
the state closed its case.
Application
in terms of
section 174
of the CPA
The
defence, at this point in the proceedings, applied for the discharge
of the accused. The provisions of
Section 174
of the CPA
provided that if, at the close of the case for the prosecution, the
court was of the opinion that there was no evidence
that the accused
committed the offence referred to in the charge, then it may return a
verdict of not guilty.
By
reason of the appointment of a new counsel for the defence, however,
the application was not pursued. Nothing more needs
to be said
about it.
The
case for the defence
The
accused testified in his own defence. He stated that, at the
time of the alleged offence, he had stayed in a shack that
was
adjacent to the dwelling of his grandmother, who had since passed
away. The accused knew M, who resided in the vicinity.
To
the allegation that he had exposed his genitals to M, the accused
flatly denied this. He also denied that he had ever pulled
M
inside his shack and raped her. He admitted, however, that he
knew M’s friend, E[…]a, who was a neighbour
to him and
who had sometimes borrowed his cellphone; he denied that it had
contained videos of a sexual nature or that he had ever
showed these
to E[…]a. The accused also knew M’s friend, E[…],
but refuted the allegation that he had
ever exposed his genitals to M
when she had been with her friends.
During
cross-examination, the accused confirmed that he had known M for a
considerable length of time; he had known her parents.
There
had been no prior animosity between the accused and M, and they had
previously exchanged greetings; she had never visited
his shack,
where he stayed alone. He agreed that a footpath led in front
of his home.
The
accused said that he had been shocked by the allegations and could
not understand why M would have falsely implicated him.
He
confirmed that he had lent his cell phone to E[…]a on numerous
occasions but explained that she had needed it to use
Facebook to
connect with her friends. Although he was adamant that there
had been no pornographic videos on his cell phone,
he could not
dispute that E[…]a had been watching these.
Regarding
M’s injuries, the accused could not dispute the nature
thereof. He was insistent, however, that he had never
raped
her. He could not say how M had been able to point out his bed
to the police, inside the shack. To M’s
account of how
the rape had occurred, the accused simply denied this; he also denied
that he had ever exposed his genitals to M.
He could, moreover,
offer no reason for why M would have wanted to land him in trouble.
In
re-examination, the accused confirmed that the police had obtained a
buccal swab from him, ostensibly to be used as evidence.
Nothing further had come of this.
The
defence closed its case.
Issues
to be decided
At
the conclusion of the trial on the merits, and after having heard
counsels’ submissions in argument, the matter seems to
be
capable of being distilled to two key issues: (a) was the
complainant, M, indeed raped, and (b) if so, then has the state
proved,
beyond reasonable doubt, that the perpetrator was the
accused?
The
above issues form the basis of the court’s enquiry. It
would be helpful, before embarking upon such an exercise,
to
reiterate some of the main principles involved.
Legal
framework
The
Supreme Court of Appeal emphasised the proper approach to be adopted
in
S
v Radebe and others
,
[3]
where Marais J A, quoted the case law as follows:
[4]
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to proper
understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently upon the
separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial may
arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all the
other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far from
it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But, once
that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail to
see the wood for the trees.’
[5]
It
is the cumulative effect of the evidence that must determine whether
the state has proved its case beyond reasonable doubt. This
constitutes the mosaic to which Marais JA referred. There will, of
course, be colours or textures or patterns that stand out, to
extend
the metaphor, and each must be examined carefully. But it is the
overall impression that counts in deciding whether the
legal test has
been met.
The
state’s evidence in the present matter rests predominantly on
the testimony of a single witness, viz. the complainant,
M. This is
no bar, however, to a conviction. The provisions of
section 208
of
the CPA stipulate that an accused may be convicted of any offence on
the single evidence of any competent witness. Corroboration
is
usually viewed as a safeguard when relying on such evidence and is
understood as ‘other evidence which supports the evidence
of
the state witness, and which renders the evidence of the accused less
probable on the issues in dispute.’
[6]
Academic
writers have pointed out, too, that there is no statutory requirement
that the evidence of a child, as in the present case,
must be
corroborated. It is important, nevertheless, that such evidence be
treated with great caution.
[7]
In
S
v Dyira
,
[8]
Jones J observed:
‘
In
our law it is possible for an accused person to be convicted on the
single evidence of a competent witness… The requirement
in
such a case is, as always, proof of guilt beyond reasonable doubt,
and, to assist the courts in determining whether the onus
is
discharged, they have developed a rule of practice that requires the
evidence of a single witness to be approached with special
caution (R
v Mokoena
1956 (3) SA 81
(A) at 85, 86). This means that the courts
must be alive to the danger of relying on the evidence of only one
witness, because
it cannot be checked against other evidence.
Similarly, the courts have developed a cautionary rule which is to be
applied to the
evidence of small children (R v Manda
1951 (3) SA 158
(A) at 162E- 163E). The courts should be aware of the danger of
accepting the evidence of a little child because of potential
unreliability or untrustworthiness, as a result of lack of judgment,
immaturity, inexperience, imaginativeness, susceptibility to
influence and suggestion, and the beguiling capacity of a child to
convince itself of the truth of a statement which may not be
true or
entirely true, particularly where the allegation is of sexual
misconduct, which is normally beyond the experience of small
children
who cannot be expected to have an understanding of the physical,
social and moral implications of sexual activity (S v
Viveiros
[2000]
2 All SA 86
(SCA) para 2). Here, more than one cautionary rule
applies to the complainant as a witness. She is both a single witness
and a
child witness. In such a case the court must have proper regard
to the danger of an uncritical acceptance of the evidence of both
a
single witness and a child witness…’
[9]
The
principles highlighted by Jones J are relevant to the present matter;
the complainant, M, is both a single witness and a child
witness. The
cautionary rules must be applied.
The
above overview provides a basic framework within which to evaluate
the evidence and to apply the relevant principles to the
facts of the
matter.
Evaluation
of witnesses
As
a starting point, the evidence of the complainant’s friends was
predominantly circumstantial in nature. I[...] testified
that M had
informed her, on separate occasions in February 2021, that the
accused had exposed his genitals and that he had raped
her. S[…]
stated that she had been with a group of friends, also in February
2021, when M had said that the accused had
showed her his penis,
which she went on to describe. A[…] supported this account.
Nothing
arose during evidence-in-chief or cross-examination to undermine the
credibility or reliability of the complainant’s
friends. Aside
from an inherent bias towards M, their testimonies were unremarkable;
they were, nevertheless, consistent and were
never seriously
challenged. Each of the witnesses had heard M say, directly, that the
accused had exposed his genitals to her;
I[...] testified that M had
said to her that the accused had raped her.
M’s
testimony contradicted I[...]’s, admittedly, since she said
that the latter had heard the allegation from S[…],
not from
her. Such contradiction was not material, however, when viewed
against the remainder of her evidence, which was clear,
logical, and
detailed. She described how she would walk past the accused’s
shack and how he would expose himself to her,
smiling. She went on to
describe his penis. She also described, in detail, how the rape had
occurred: how the accused had enticed
her into his yard with the
offer of R 5; how he had pulled her into his shack, pushed her onto
the bed, lowered his trousers and
her panties, climbed on top of her,
placed his penis inside her vagina and thrust himself against her,
only to be interrupted by
the sound of his grandmother’s voice,
whereupon he had fastened his trousers and exited the yard by jumping
over a low gate.
She described how the accused’s grandmother
had entered the shack and seen how she had been bleeding, which had
stained the
bed. She described her visit to the hospital and the
examination that was carried out.
The
complainant’s testimony about the accused’s having placed
a piece of cloth inside her mouth only emerged during
cross-examination. So, too, did her mention of his threat to kill her
if she told anyone what had happened. Counsel for the state,
however,
did not specifically ask her about these aspects during her
evidence-in-chief. The contradiction referred to earlier and
the
omissions just discussed do not detract, in any way, from either the
credibility or reliability of her testimony. They are
not material.
There were no other contradictions in her evidence, which was,
overall, cogent and of satisfactory calibre for an
11-year-old
witness. The quality, integrity, and independence of her recollection
of the events that form the subject of the charges
were more than
adequate. There is little, if anything, to prevent the court from
finding that the probabilities of what happened
were indeed in M’s
favour.
Regarding
the testimony of the medical practitioner, Dr Mnyanda, she came
across as an independent witness who was careful to remain
within the
boundaries of her expertise and to narrate only what she had seen and
heard directly. She accepted that the white discharge
from the vagina
could have been from an infection. She was adamant, however, that her
medical findings indicated that there had
been sexual penetration.
The court is satisfied that she was a credible and reliable witness
and that the probabilities coincide
with what she found.
It
is necessary to turn, finally, to the accused. His testimony amounted
to little more than a bare denial of the allegations. He
admitted
that he knew the complainant and her friends, E[…]a and E[…];
he also admitted that he had lent his cellphone
to the former. He
could not explain, however, how M had been familiar with the inside
of his shack and the location of his bed
or why M would have
implicated him in the offences. More will be said about his testimony
in due course.
Discussion
During
argument, counsel for the defence suggested that the complainant had
been embarrassed by her friend, Esihle, who had accused
her of
revealing her buttocks to the accused. The complainant, argued
counsel, had dealt with her embarrassment by explaining,
firstly,
that it had been the wind that had lifted her dress, and, secondly,
that the accused had started the trouble by exposing
her genitals to
her. It is difficult to agree, however, that the allegation had been
made in reaction to M’s social discomfort.
The allegation would
surely have attracted further accusations and derision on the part of
her friends if there had been no basis
for it.
It
is perfectly plausible, too, that M had not mentioned this before
because she had been ashamed of what had happened; she had
also been
afraid that her mother would have punished her. This invites the
question of whether the complainant’s mother,
K[…], had
not extracted a false allegation from her, wrongly implicating the
accused. Besides the trite observation that
a suspicion of harm to a
child would usually attract the ire of a parent, there is little from
the complainant’s evidence
or that of her friends to indicate
that M’s mother had been violent or excessively strict.
Counsel
referred to
Woji
v Santam Insurance Co Ltd
[10]
,
where Diemont JA considered the concept of trustworthiness in
relation to a child witness. Academic writers have remarked
that
Diemont JA reduced it to the following four components:
‘
(a)
the capacity of observation, as to which the court should ascertain
whether the child appears sufficiently intelligent
to observe;
(b)
the power of recollection, which depends on whether the child has
sufficient years of discretion to remember
what occurs;
(c)
narrative ability, which raises the question whether the child has
the capacity to understand the questions
put, and to frame and
express intelligent answers; and
(d)
sincerity, in regard to which the court should satisfy itself that
there is a consciousness of the duty to
speak the truth.’
[11]
With
reference to the above, counsel contended that the complainant could
only say that it was the accused who had raped her; she
could not say
when. This may be so in relation to precisely when the accused had
allegedly exposed his genitals to M, but she explained
that this had
happened on several occasions. The date of the alleged rape itself
was never in dispute at trial; it occurred on
or about 19 February
2021, with the complainant’s having informed her friends during
the next couple of days, before undergoing
a medical examination on
22 February 2021. The argument made by counsel is not entirely
understood.
It
was also contended that the complainant’s narrative ability was
so poor that she contradicted the evidence of her friends
and that of
Dr Mnyanda. The court has already dealt with the earlier
contradiction and omission, finding that these were not material
in
nature. The complainant testified, admittedly, that she was only
raped once by the accused, which differed from what she had
told Dr
Mnyanda and what the medical examination revealed. What is clear,
nonetheless, is that the medical evidence corroborates
her testimony
to the effect that she had been raped. The reason for the discrepancy
may arise from a reluctance on M’s part
to relive past
traumatic experiences. It may even arise from an intention to shield
the accused to some extent from the consequences
of his actions. This
remains speculation, of course, but the inescapable fact is that the
complainant’s allegation that she
was raped was corroborated
strongly by the medical evidence. Counsel appeared to concede this
during argument.
It
is necessary to pause, at this stage, to address counsel’s
contention that Dr Mnyanda contradicted herself in testimony.
During
cross-examination, counsel asked her whether the white discharge from
the complainant’s vagina indicated an infection,
to which she
had answered that it was impossible to say just by looking. Counsel
then asked whether the injuries observed could
arise from an
infection alone; she agreed that this was possible. Later, the
following exchange occurred between the court and
Dr Mnyanda:
‘
COURT:
And then I need to understand clearly your response to one of
the
questions posed to you by the defence counsel. You appeared not to
exclude the possibility that the injuries described in the
report
could have arisen from an infection. Is that correct?
DR
MNYANDA: He was asking about the discharge… A
discharge could be due to an infection, it could just be due
to a
physiological bodily response.
COURT:
So, your answer then was confined to the discharge, not
to the other
injuries.
DR
MNYANDA: Yes, I think he was asking about the white
discharge that I noted coming from the vagina.
COURT:
Yes. And the remaining injuries… excluding the discharge,
would they possibly be indicative of an infection?
DR
MNYANDA: No, no, M’Lord.’
The
exchange did not give rise to a contradiction; Dr Mnyanda was merely
clarifying her earlier testimony. Whereas the discharge
may have been
caused by an infection, Dr Mnyanda previously stated, unequivocally,
that her findings had been consistent with the
allegation that there
had been sexual penetration of M’s vagina.
Dr
Mnyanda testified that she had examined the complainant and noted
that the appearance of M’s genitalia had indicated trauma;
a
fresh tear of her hymen had pointed to recent trauma. Counsel argued
that this gave rise to the possibility that M had been raped
by a
third party. The difficulty with this, however, is simply that there
was no evidence whatsoever of any third party’s
involvement.
The accused could not name a single person who may have been the
actual culprit. This is a major weakness in the defence’s
argument.
Counsel
also pointed to the state’s failure to produce DNA evidence;
this could have been obtained from the blood stains on
the accused’s
bed. That may be so, but the failure of the state to do so does not
detract from the existing evidence regarding
the identity of the
perpetrator. It is common cause that the accused had known the
complainant for some time, as well as her friends,
E[…]a and
E[…]; they had referred to him, in testimony, by his nickname,
‘bra Nko’. The accused had,
moreover, lent his cellphone
to E[…]a on several occasions. For a 50-year-old single man,
the nature of his relationship
with M and her friends strikes the
court as unusual, to say the least, if not inappropriate. The
complainant, in her testimony,
described in detail how the accused
would expose his genitals to her; she could describe his penis. She
also described in detail
how the rape had occurred. She was
consistent under cross-examination and maintained her version despite
having come under intense
questioning from counsel. Her friends
confirmed that she had named the accused as the culprit. There was,
moreover, no evidence
of any animosity between her and the accused or
any other reason why M would have wished to falsely implicate him.
For his part,
the accused offered a bare denial. He could not explain
the complainant’s accusations. He could not explain her
familiarity
with his shack and the location of his bed. Importantly,
he could not suggest any third party as the real perpetrator.
Verdict
The
court is satisfied that the mosaic of evidence, to borrow the
metaphor used in Hadebe, demonstrates that the identity of the
person
who raped the complainant was the accused. Whereas M was both a
single and a child witness, her evidence was sufficiently
compelling
to withstand the application of the usual cautionary rules. It was
also corroborated, to a considerable degree, by the
medical evidence.
Notwithstanding
the allegation contained in the charge that the accused had raped the
complainant more than once, the court is not
satisfied that this
aspect was proved by the state. Whereas the medical evidence suggests
previous trauma, the court cannot ignore
the testimony of the
complainant to the contrary.
The
court is persuaded, nevertheless, that, in answer to the two issues
identified previously, the state has proved beyond reasonable
doubt
that: (a) the complainant was indeed raped; and (b) the accused was
the perpetrator. A secondary, but no less important,
finding of the
court is that the state has proved that the accused exposed his
genitals to M.
Consequently,
the court has reached the following verdict:
(a)
regarding Count 1, the accused is found guilty; and
(b)
regarding Count 2, the accused is found guilty, save that he is not
found to have raped the complainant more
than once.
LAING
J
JUDGE
OF THE HIGH COURT,
MAKHANDA,
HELD IN BHISHO
APPEARANCE
For
the state:
Adv
S Mtsila
Instructed
by:
Director
of Public Prosecutions
Makhanda
046 602
3000
For
the accused:
Adv
Giqwa
Instructed
by:
Legal
Aid South Africa
Qonce
043 604
6600
Date
of delivery of judgment:
29
February 2024
[1]
To
be read with
sections 1
,
56
(1),
58
,
59
and
60
thereof.
[2]
The
complainant’s mother, K[…] P[…], subsequently
passed away, on 22 June 2022.
[3]
1998
(1) SACR 422 (SCA).
[4]
At
426f-g
[5]
Moshepi
and others v R (1980 –
1984) LAC 57
, at 59F -H.
[6]
Etienne
du Toit (et al), Du Toit: Commentary on the
Criminal Procedure Act
(Jutastat
e-publications, RS 67, 2021), at ch24- p2. See, too,
S
v Gentle
2005
(1) SACR 420 (SCA).
[7]
Du
Toit,
op
cit,
at
ch24- p9.
[8]
2010
(1) SACR 78 (ECG).
[9]
At
para 6.
[10]
1981
(1) SA 1020 (A).
[11]
Du
Toit, ibid.