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[2024] ZAECELLC 31
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S v A.M and Another (CC 27/2022) [2024] ZAECELLC 31 (29 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT)
Case
No: CC 27/2022
In
the matter between:
THE
STATE
and
A[…]
M[…]
Accused
1
N[…]
N[...]
Accused
2
JUDGMENT
MALUSI
J:
[1]
When considering cases involving rape the Supreme Court of Appeal
made a profound observation
and enjoined role players in criminal
trials in the following terms:
“
The
prosecution of rape presents peculiar difficulties that always call
for the greatest care to be taken, and even more so where
the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding and
careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and many
prosecutions fail
for that reason alone. In those circumstances each detail can be
vitally important.”
[1]
[2]
The accused 1 is a 50-year-old male person who faces a charge of
sexual assault and rape in contravention
of
sec 5(1) and sec 3
respectively of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
. Accused 2 is a 34-year-old
female person who is charged with failing to report a sexual offence
committed against a child to a
police officer in contravention of
sec
54(1)
of the Act
.
2.1
The allegations are set out in the indictment as follows:
2.1.1 Rape
(in
respect of accused 1 only)
In that on or about the
period of January 2020 to 25 August 2021 at or near House number […],
Police Barracks, Cambridge,
East London, in the district of East
London, the accused on divers occasions, unlawfully and intentionally
committed acts of sexual
penetration with
M[…] N[…]
,
1 14-year-old girl by having sexual intercourse with her per
vaginam
against her will and without her consent.
2.1.2 Failing to
report a sexual offence committed against a child to the police
(in
respect of accused 2 only)
In that on or about the
same time and place mentioned in count 1, the accused, unlawfully and
intentionally failed to report to
the police her knowledge of the
commission of a sexual offence of rape against a child,
M[…]
N[…]
.
[3]
Each accused pleaded not guilty to their respective charge.
Accused 1 made a statement in
explanation of his plea. He
denied that he ever sexually assaulted the complainant in any way
whatsoever. He further
denied that he ever had sexual
intercourse with the complainant in any manner whatsoever.
[4]
Accused 2 also made a statement in explanation of her plea. She
denied any knowledge of
any sexual assault that she allegedly failed
to report to the police. She stated the first time she came to
know of an alleged
sexual assault was when accused 1 was already
arrested. She only received a report thereafter.
[5]
The background facts are largely not in dispute or common cause.
The principal facts will
be set out in an effort for better
exposition of the issues for determination.
[6]
The complainant was born on 2[…] September 2007 which made her
to be aged eleven
(11)
to thirteen
(13)
years at the
time of the alleged incidents between December 2018 to August 2021.
She is the daughter of accused 2 born from
a previous relationship
and accused 1 is not her father. Accused 1 and 2 were involved
in a love relationship. They
later married which fact was kept
a secret from the family of accused 2 until they were divorced.
[7]
After accused 2 graduated from police college during December 2017
she cohabited with accused
1 in the police barracks,
Cambridge
police complex in a flat allocated to the latter. There is
a dispute about which time during 2019 she moved to her own flat.
It appears from the evidence that in the subsequent months and years
she was moving between her own flat and cohabiting with accused
1.
It is further common cause that during the material time in the year
2020 and 2021 both accused together with
B[...]
who is a
sister to accused 2,
K[...]
a younger sibling of the
complainant and a son of accused 1 were all residing in the flat at
the police barracks at different times.
[8]
It is not in dispute that a medical examination of the complainant
was performed on 26 August
2021. The medical examination found
that the complainant had fresh and old injuries which were consistent
with genital penetration.
[9]
The complainant testified that during December 2018 she was watching
a movie on the television
in the lounge of the police barracks flat.
She and her aunt were seated on the sofa and accused 1 was seated on
a mattress
on the floor in front of them. Accused 1 invited
both of them to join him on the mattress.
B[...]
declined the invitation. The complainant joined accused 1 on
the mattress and were seated side by side, 1metre to 1½metre
apart.
B[...]
left for her bedroom shortly
thereafter.
[10]
The complainant testified that thereafter accused 1 placed his hand
on her vagina and rubbed it. He
also took her hand and made her
to touch his penis. The complainant later joined her aunt in
the bedroom as they shared a
bed. When her aunt enquired what
had happened to her, she informed her in accordance with her
allegations. They were
communicating by short message service
(SMS)
on the same mobile phone.
[11]
She left with her aunt for the
N[…]
rural home in
Tsolo
on the following morning. She was not scheduled to leave with
her aunt that day. Sometime after her arrival in
Tsolo
she told her grandmother what had happened to her.
[12]
The complainant testified that in the beginning of the year 2020
whilst she was in her bedroom making up
the bed accused 1 arrived
from work during the morning session. He had apparently
forgotten a document. He entered
her bedroom and approached her
from behind. He hugged the complainant from behind such that
his arms were around her waist
and pulled her tightly closer to him.
She tried to free herself and accused 1 assured her that she must not
worry trying
to move away as ‘
he will not sex her’
.
After a struggle the accused simply released her from his grip.
[13]
The third incident occurred during the lockdown period in 2020.
The complainant testified that she
was in the bedroom of accused 1
together with him. Her younger sister was watching cartoons in
the lounge. Accused
1 started touching her upper body. He
placed her on the bed. He continued touching the complainant
and made a comment
about how beautiful her breasts were. He
took out his penis and undressed her. He placed his penis on
and rubbed against
her vagina. She felt pain as he was
attempting to penetrate her. He did not succeed. The
complainant had a startled
response as she just lay on the bed,
frightened and unable to move. Her voice would not come out.
[14]
The complainant testified that the next incident was also during the
year 2020 when her mother and her aunt
had visited their sibling who
was ill. The complainant was together with the accused in his
bedroom scrapping dandruff off
his head. He got up closed the
door and came back to the bed where she was now seated. He
touched her breasts and took
out his penis after undressing her.
He initially rubbed his penis on her vagina before penetrating her.
She asked him
to leave her alone as it was painful. Accused 1
ejaculated on his hand and left to finish off in the toilet.
[15]
The complainant testified about the fifth incident during 2020 when
she was watching cartoons in the lounge
and accused 1 called her to
his bedroom. He placed her on the bed, touched her breasts and
commented about how beautiful
they were. He was kissing her on
the chest and neck area. After he had rubbed his penis on her
vagina, he penetrated
her and ejaculated on his hand. He left
to finish in the bathroom. The complainant dressed up in his
absence and left
for the lounge. Accused 1 followed her into
the lounge and left shortly. He then called her into the
passage where
they stood opposite each other. Accused 1 told
her he is not going to do anything more to her. After a brief
conversation
the complainant cried. He hugged her, placed her
on his chest comforting her by patting her on her back.
[16]
The complainant testified that the sixth incident arose after a
routine grocery shopping trip. Accused
1 had communicated how
much he admired the complainant when she was asleep. The day
after this conversation the accused was
in the lounge with the
complainant while
B[...]
was washing some items in the
bathroom.
B[...]
ended up going to bed as it was in the
evening.
[17]
The complainant testified she pretended to be asleep on a couch.
The accused picked her up from that
couch and placed her on another.
He undressed the complainant whilst she still pretended to be
asleep. She felt his
penis penetrating her vagina. He
then pulled it out and rubbed it on her vagina. At this stage
she grabbed his testicles
and squashed them with her hand. When
she looked at accused 1 he appeared distressed and his eyes were
red. She expected
him to assault her. She then told him
never to repeat what he was doing. Accused 1 nodded his head.
After she
repeated her words and he said ok, she let go of him.
Accused 1 later went to bed and the complainant did likewise after
washing her hands.
[18]
According to the complainant the penultimate and last incidents both
occurred on 25 August 2021 during the
morning. Accused 1 had
returned from work ostensibly to collect a work document. He
found the complainant in the kitchen
after he had been to his
bedroom. He approached her from behind, hugged her tightly and
fondled her breasts. He was
breathing heavily. He then
released her and left for work.
[19]
The complainant reported this incident per sms to
A[…] M[…]
with whom she was involved in a development programme for girls
called
Empress
.
[20]
Accused 1 returned to the flat later that morning and went to his
bedroom. The complainant changed
from her pyjamas to a pair of
jeans. She approached his bedroom and only put her head through
the door. She enquired
about his wellbeing since he was back
early. Accused 1 called her into the room. She only stood
next to the door though
he repeatedly asked her to get closer to
him. He then pulled her onto the bed. He lay on top of
her kissing the complainant
on the face and neck area. He stood
on the edge of the bed and pulled her closer. He fondled her
breasts and undressed
her. After taking out his penis and
rubbing it against her vagina he penetrated her. He later
ejaculated on his hand
and left the bedroom to finish off in the
toilet. The complainant ran out of the bedroom after collecting
her clothes.
This entire incident was before 12 noon. The
complainant got dressed in the lounge.
[21]
She pretended she was going out to throw away the household garbage.
She ran to her aunt’s workplace
in
Vincent
. She
made a report to her aunt that accused 1 had raped her. Accused
1 called her on her mobile phone to ask that she
must return home.
She was later taken to
IPID
offices where a case was
registered against accused 1. She was turned back on the way to
hospital after being informed that
there was no doctor available.
She was examined by a forensic nurse on the following day, 26 August
2021.
[22]
The complainant testified that after the sixth incident she reported
to accused 2 about the fourth and the
sixth incidents. Accused
2 had exclaimed and said to her she should have squeezed his
testicles even harder. They were
in a vehicle on the way to
fetch her younger sister from school. Accused 2 had asked her
what was to be done. She gave
complainant two options, either
reporting to the police or accused 2 talks to him. The
complainant indicated to her that
she was scared of going to the
police. She agreed that accused 2 could speak to him. To
the best of her knowledge her
mother did not do anything about the
report.
[23]
Under cross-examination it became clear that the complainant cannot
recall the exact dates of the various
incidents except for the last
incident. She was taken to task about contradictions, some of
the incidents not being in the
police statement and those that were
contained therein not as detailed as her evidence in court.
[24]
B[...] N[...]
who is an aunt to the complainant gave
evidence. She confirmed the complainant’s testimony
regarding the invitation
to join the accused on the mattress.
She further confirmed that as she had gone to bed earlier than the
complainant, she
looked up when the latter entered the room.
The room was lit and she could see the distressed condition of the
complainant.
She confirmed that she made enquiries regarding
the change she noticed in the complainant. She testified that
the complainant
told her that accused 1 was touching the latter
inappropriately even on her private parts. The complainant also
related that
accused 1 had made her touch his private parts.
She confirmed that the complainant was distressed and on the verge of
tears.
She decided that she was to leave with the complainant
to
Tsolo
the following morning. She was scheduled to
leave two
(2)
days later but had brought her departure forward
and took the complainant with her. She stated that she had not
told accused
2 about the report from the complainant because
B[...]
was afraid of accused 1. She did not tell the complainant’s
grandmother because of the old lady’s fragile health.
She
only told the grandmother in January 2019.
[25]
Regarding the August 2021 incident
B[...]
testified that the
complainant arrived at her office in a distressed state after 11h00.
She confirmed that the complainant
reported to her that accused 1 had
raped her.
[26]
Under cross-examination she was taken to task about aspects of her
evidence which were not in her police
statement. She stated
that she was in a state of shock at the time of deposing to the
police statement. She confirmed
that after the complainant’s
grandmother was informed of the 2018 sexual assault allegations the
latter came to
East London
. She testified that the
complainant was about a metre to 1½ metre while seated on the
mattress with accused 1 during
December 2018 incident. She
testified that the relationship between the two accused broke down
after accused 1 was charged
with rape.
[27]
N[…]o N[...]
is the grandmother to the complainant.
She confirmed
B[...]’s
evidence that she reported the
2018 sexual assault incident to her during January 2019. At the
time accused 1 was a stranger
to her. She testified that she
was neither aware of the relationship nor that accused 2 was
cohabiting with accused 1.
[28]
Mrs N[...]
testified that she came to
East London
to
meet accused 2 before
Easter
2019. She informed her
about the report she had received of sexual assault on complainant by
accused 1. Accused 2 hurriedly
left the flat and said on her
return that she had gone to confront accused 1. Accused 2
reported on her return that she had
confronted accused 1.
Accused 1 had stated that he was playing with the complainant and had
denied the sexual assault allegation.
Mrs N[...]
woke up
on the following day and left accused 2 in the bed.
[29]
Mrs N[...]
testified that she was informed about the rape
incident in August 2021. At the time she was nursing accused 2
who had recently
been discharged from hospital after a serious
illness.
[30]
Under cross-examination
Mrs N[...]
stated that she had asked
the complainant about the details of the 2018 incident after
B[...]
had reported it to her. She could not recall the complainant
informing her about the incident. She confirmed that accused
2
was forgetful. She testified that accused 2 appeared shocked
when
Mrs N[...]
told her of the 2018 incident. She
stated that early 2019 before
Easter
she had come to
East
London
for the sole purpose of informing accused 2 about the 2018
incident. Accused 2 was not ill at the time. She had
noticed
a change in the behaviour of the complainant after August
2021. The complainant seemed to be angry most of the time and
was
banging dishes. She was isolating herself from her family
and appeared to be reclusive. She was demanding or expecting
to
get things provided to her immediately. She had left
East
London
a day after accused 2 informed her that accused 1 was
denying the allegations regarding the 2018 incident.
[31]
Nomvuyo Makinana
is a forensic nurse stationed at
Cecilia
Makiwane
hospital. She testified that on 26 August 2021 she
examined the complainant. She found the para-urethral folds
were
bruised. These are outside the vaginal orifice. She
found abrasions and lacerations with minimal bleeding on the
posterior
fourchette. The fossa navicularis was bruised and
red. These were all fresh injuries meaning they had been
inflicted
less than 72 hours from the time of the examination.
These injuries had been inflicted using blunt force.
[32]
Sister Makinana
had also found old healed cleft injuries on
the hymen. The injury had completely healed. The hymen
was also not intact.
The hymen injuries contradicted the
complainant’s report to her that she was not sexually active.
She had also found
a whitish discharge. In her opinion the old
and the fresh injuries were consistent with old and fresh genital
penetration
of the complainant. The fresh injury supported the
complainant’s allegations that she was sexually penetrated on
25
August 2021.
[33]
Under cross-examination
Sister Makinana
indicated that she was
unable to state the age of the old injuries other than that it was
beyond 72 hours.
[34]
That was the
State’s
case.
[35]
At the close of the State case accused 2 applied for a discharge.
The application was refused and it
was indicated at the time that the
reasons will be provided in this judgment. The reason for
refusing the discharge was that
the evidence at the close of the
State case was such that this court would convict accused 2 if she
did not testify in her defence.
It appeared to me the evidence
was clear and overwhelming from both the complainant and
Mrs
N[...].
The latter gave evidence that she had
informed accused 2 about the 2018 incident and the complainant told
accused 2 about
the fourth and sixth incidents.
[36]
Accused 1 called
Lusanda Booi
who is a deputy director for
investigations at the
Independent Police Investigation Division
(IPID)
. She testified about how her unit obtained a
statement from the complainant. She stated that the complainant
had mentioned
only two
(2)
occasions when she was raped by
accused 1 and there were more incidents of sexual assault. The
complainant had alluded that
accused 1 was touching her breasts and
making her touch his manhood. She denied that she did not read
the statement back
to the complainant before she signed and
initialled it.
[37]
Under cross-examination she indicated that the complainant was
withdrawn and exhausted at the time police
statement was taken.
The complainant initially considered the
IPID
members as part
of the police who were colleagues of accused 1. She indicated
that when the complainant was interviewed by
the public prosecutor,
she provided details of her sexual assault. However, these
notes from the public prosecutor’s
consultation were not
converted to a statement. She further stated that the
complainant had recalled other incidents after
the initial interview.
[38]
Accused 1 testified that he does not recall being alone with the
complainant watching television during December
2018. He also
could not recall the incident details as alleged by the complainant
and
B[...]
. He was never confronted with the allegations
regarding the December 2018 incident. Regarding the first
incident where
he is alleged to have hugged the complainant accused 1
stated that he hugs everyone in the house when he departs for work
and upon
his return. He denied the second and the third
incidents ever took place. He also denied the fourth and the
fifth incidents.
On the incident of 25 August 2021 he testified
that he left for work before
B[...]
. He did not see the
complainant that day. He denied going back home during the
day. He admitted that he went
back to the flat after fetching
the children from school. He was supposed to take the
complainant and her younger sister
to a doctor’s consultation
on accused 2’s instruction as they both had flu at the time.
[39]
He testified that he received information that a charge was being
laid against him in the private offices
at the police station.
He denied that he sexually assaulted the complainant between 2018 and
August 2021. He testified
that it was the first time for him to
meet the complainant during December 2018. He denied the
various incidents of sexual
assault and rape during year 2020.
He confirmed that the
SAP15
duty register was an obligation to
be signed by members. He denied the incident on 25 August 2021
had taken place and said
he was at work at the time though he had
nothing in writing to support the denial.
[40]
Accused 1 called
Luxolo Mhatu
who is a retired
Leiutenant
Colonel
who was the crime prevention unit commander at the
Cambridge
police station during August 2021. He gave
evidence that accused 1 was a member of the social crime prevention
subcomponent
within the unit he commanded. His office and
that of accused 1 were in the same passage and diagonally opposite
each
other. He stated that the
SAP15
was essentially an
attendance register where it was recorded when members reported on
duty and off duty. Attendance may also
be recorded in an
occurrence book or a pocketbook. In his view a pocketbook was
more reliable as an officer carried it in
his person and recorded his
movements. He stated that he had seen accused 1 at work in the
early morning of 25 August 2021.
He saw accused 1 walking past
his office. He thereafter left his offices to conduct crime
prevention patrols in the townships.
Lieutenant Colonel
Mhatu
then returned to the police station at about 13h00.
Whilst he was at the carpark with other officers who were more senior
to him they met accused 1 who reported to him that a charge was laid
against accused 1. He could not recall if accused 1
had
provided details of the charge or the complainant. He did not
see accused 1 again that day.
[41]
Under cross-examination he stated that he was not the immediate
supervisor of accused 1. He stated
that he left the police
station at about 9h30 and returned at 13h00. He could not
dispute that accused 1 may have attended
work on the morning of 25
August 2021 but then returned to the barracks to commit the offence
and later went back to work.
He was not in a position to
account for the movements of accused 1 between 9h30 and 13h00.
[42]
That was the case for accused 1.
[43]
Accused 2 testified that the complainant relocated to
East London
in January 2020 so that she may attend the local schools. She
testified that the first time she heard about the incident
in
December 2018 was during August 2021 after a rape case had been
registered against accused 1. She denied that her mother
had
visited in January 2019 as she was still residing with accused 1 at
the time. She stated that her mother only came during
May or
June 2019 when she had moved back to her flat. In her view if
the 2018 incident had indeed occurred both the complainant
and
B[...]
had an opportunity to report it to her. She could not provide a
reason why they failed to do so. She recalls being
woken up
during the morning session after she had returned from her night
shift duties to transport the complainant and
B[...]
to the
taxi. The departure for
Tsolo
at that particular time
was unexpected. She stated that en-route to the taxi rank she
berated them and specifically rhetorically
asked what would the
complainant and her aunt would have done if she did not have money
for the taxi fare as they were surprising
her with an early
departure.
[44]
Accused 2 testified that one of the consequences of her prolonged
illness was that she tended to be forgetful.
She forgot even a
basic chore like fetching a child from school. She stated that
her forgetfulness was not consistent and
ongoing. It would
surface only when she was ill.
[45]
Regarding the events of 25 August 2021 she confirmed that she had
spoken with accused 1. She stated
that their telephone
discussion only concerned the complainant’s younger sibling,
K[...]
who was to be fetched from the house and bought a cake
by a friend of accused 2. Accused 1 informed accused 2 that he
had
already dropped
K[...]
at home. Accused 2 stated
that she would have opened a case with the police if a report had
been made to her about the December
2018 incident.
[46]
That was the case for accused 2.
[47]
The correct approach in assessing the evidence in a trial is for the
court to consider the evidence holistically
by having regard to the
mosaic of proof as a whole (
S v Hadebe and Others
1998 (1)
SACR 422
(SCA) at 426 f.)
Nugent J
(as he then was)
in
S v Van der Meyden
1999 (2) SA 79
(W)) held that it is
wrong to adopt a mechanical, compartmentalised approach of examining
the state case in isolation and thereafter
consider the defence case
discreetly. This may likely result in the illogical conclusion
that the state case is acceptable
and at the same time the accused
version is possibly true. The conclusion whether to convict or
acquit depends on the totality
of the evidence and must account for
all of it. The Supreme Court of Appeal endorsed this approach
in the case of
S v Aswegen
2001 (2) SACR 97
(SCA).
[48]
In this case more than one cautionary rule applies on the complainant
as a witness. She is both a single
witness and a child
witness. In such a case, a court must have a proper regard to
the danger of uncritical acceptance of
the evidence one who is both a
single witness and a child witness. In dealing with such
evidence our courts have laid down
certain general guidelines which
are of assistance when warning themselves of the danger of relying
upon a single witness who is
also a child witness.
[49]
In emphasizing the need for caution, it is necessary to
remember that the cautionary rule is
a rule of practice and not a
rule of law. In applying the cautionary rule, it is well to
have regard to the warning of
Holmes JA
when he said:
“
. . .while
there is always a need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt; and courts
must guard
against the reasoning tending to become stifled by formalism.
In other words, the exercise of caution must not
be allowed to
displace the exercise of common sense . . .”
[2]
I have also kept in mind
the accepted guidelines when applying the cautionary rules in
evaluating the evidence of a single witness
who is also a child.
See:
S v Dyira
2010 (1) SACR 78
(ECG) at para 10;
S v
Hannekom
2011 (1) SACR 430
(WCC) at para 15.
[50]
The complainant is a single child witness regarding the actual act of
sexual assault during December 2018
incident. However, on the
circumstances surrounding that incident,
B[...]
is a
corroborating witness. They both state that the complainant was
invited to join accused 1 on the mattress. She
accepted the
invitation and sat more or less a metre to a 1½ metre from the
accused. After the conclusion of the movie
they were watching
at the time
B[...]
went to the bedroom. The denial by
accused 1 of this evidence is without merit and must be rejected.
He claims not
to recall as there have been many instances he would
watch a movie with the complainant. However, the evidence
clearly establishes
that this was the complainant’s first
holiday visit to the police barracks. She had been visiting for
a few days at
the time of the incident. Whether it was seven
(7)
or fourteen
(14)
days is of no consequence.
Most importantly, the overwhelming and convincing evidence is that
B[...]
and the complainant abruptly left the day after the
alleged incident. In such circumstances accused 1 ought to
recall clearly
what had transpired on the night.
[51]
The further aspect is that on her return to the bedroom the
complainant appeared distressed to
B[...]
.
I find it implausible that the complainant in this distressed state
would be alert to fabricate an allegation that accused
1 had shortly
before sexually assaulted her. A court is entitled to take into
account the distressed condition of a complainant
in determining
whether she has been raped or not. Our Appellate courts have
recognised that the distressed and traumatized
state of a complainant
immediately after an incident of alleged rape lends credence to her
allegation.
[3]
That
reasoning applies with equal force to sexual assault.
[52]
Both the complainant and
B[…]
testified that the
complainant immediately gave a first report of the sexual assault by
accused 1. In my view the first report
immediately after the
incident shows consistency on the complainant’s part in regard
to her allegation which is a factor
that serves to rebut any
suspicion that she may have fabricated the allegation.
[4]
[53]
The further aspect that lends credence to the allegation of sexual
assault is that the complainant and
B[...]
prematurely left
the police barracks flat for
Tsolo
before their respective
scheduled times for such a departure. The denial by accused 1
that the departure was premature is
without merit. Much was
made during the trial whether the complainant and
B[...]
left
before or after Christmas. That issue is of no consequence.
The material issue is whether they left as scheduled
or planned
alternatively abruptly or prematurely. The complainant,
B[...]
and accused 2 all state that the departure was premature. The
question arises, why would that be so? The ineluctable
conclusion from the evidence before court is the reasons provided by
the complainant and
B[…]
, namely, the sexual assault on
the complainant made any further stay, even for a day longer,
intolerable. The evidence indicates
they had to depart
immediately for the safety of the complainant.
[54]
The criticism by
Mr Skade,
who appeared for accused 2, on the
evidence regarding this incident is without merit. A failure by
the complainant and the
first report to mention a particular incident
when the allegation is one of ongoing sexual abuse can never be the
basis of rejecting
credible and reliable evidence. There is no
requirement in our law that before a conviction may ensue the State
must prove
with precision the exact date on which the incident took
place. As already indicated that issue is of no consequence
when
the evidence is considered holistically. Both the
complainant and
B[...]
have testified that accused 2 was not
informed of the allegations of sexual assault due to the fact that
B[...]
wanted to protect accused 2’s relationship with
accused 1. The fact that the complainant relocated to the
police barracks
in 2020 cannot be a basis to reject credible and
reliable evidence. The complainant who was a young child did
not have much
say in the matter as her mother took the decision for
her to go and stay in the police barracks during 2020. She was
a twelve
(12)
year old child and the evidence does not
indicate that she was a rebellious child who would have run away from
home or done something
like that.
[55]
The proper approach in evaluating the evidence regarding the second
to the sixth incidents or put otherwise
the year 2020 incidents is
that each and every one of those incidents must be evaluated
individually and the merits of each incident
considered. It is
only after such an exercise that one may step back and consider the
2020 incidents as a group or holistically
to identify any pattern or
whatever the evidence indicates. I have performed such an
exercise. However, due to the
conclusion I have reached it is
not necessary to set out in detail the evaluation of the evidence on
each of the incidents.
[56]
In each of these 2020 incidents the complainant is a single witness.
On each of these incidents she
impressed me as a good witness who
gave consistent, clear and persuasive evidence. But that is not
the end of the evaluation.
When I exercised the necessary
caution in determining whether the standard of proof has been
established, I found that the evidence
fell short. In my view,
this was unfortunate as it was not due to any fault of the
complainant. It appears to me that
these incidents were not
properly investigated. By that I mean corroborating evidence
may have been found somewhere else.
An example would suffice.
An investigation may have been conducted with the assistance of the
complainant’s schoolteachers
and an evaluation of her
performance at school. A decline in performance correlating
with a particular allegation may have
assisted the State in reaching
the legal standard of proof. Some of the valid criticism
against the evidence in these counts
has been set out by
Mr Skade
in his heads of argument. I am satisfied that the benefit of
doubt redounds to accused 1 for lack of corroboration of the
allegations.
[57]
The incident on 25 August 2021 is on a different footing. There
are two offences that were committed
on that day. The
complainant testified that she was sexually assaulted by accused 1 on
the morning of that day. She
stated she made a report to an age
mate of hers involved in the
Empress
development programme.
This testimony about the first report was not challenged. It is
regrettable that the
Empress
friend of the complainant was not
called as a witness. However, even without that evidence and
having exercised the due caution,
I am satisfied that the complainant
was sexually assaulted. The evidence she gave on this sexual
assault incident was coherent,
credible and reliable.
[58]
The complainant gave evidence on the manner in which the accused had
raped her on this day. The evidence
does not stand alone.
She found corroboration from
Sister Makinana
who concluded
that the complainant’s vagina had been penetrated in the
previous 72 hours from 26 August 2021. The medical
evidence
stands unchallenged. Her distressed state on arrival at
B[...]’s
workplace lends credence to her allegation that
accused 1 had raped earlier that day. Her report to
B[...]
is consistent with her allegation of rape. I find it
implausible that the complainant in her distressed and shocked state
of mind would be alert to embellish her version when she gave the
report to
B[...]
. In my assessment of the complainant,
she appeared to be a normal child of average intelligence. Her
first report serves
to rebut any suspicion that she may have
fabricated the allegation.
[59]
Accused 1 raises an
alibi
as a defence to
this rape and sexual assault allegation. It has been held that
‘
the
correct approach is to consider the alibi in the light of the
totality of the evidence in the case and the courts ’impression
of the witnesses.’
[5]
It is not in
dispute that accused 1 had gone to work at the normal time on the
morning of 25 August 2021. The issue in dispute
is limited.
The complainant alleges that he had returned during that morning and
committed the sexual assault. He again
left for work. She
alleges that before noon he came back again to commit the rape.
[60]
The testimony in support of the
alibi
was provided by accused
1 and
Lieutenant Colonel Mhatu.
Accused 1 alleges that
he went to work at the normal time and was at work until he had to go
and fetch the complainant’s
younger sibling from school.
The evidence is corroborated to a limited extent by
Mr Mhatu
who confirms that he saw accused 1 passing his office earlier that
morning before 9h30 and again at about 13h00 at the carport.
[61]
Mr Mgenge
, who appeared for the
State
submitted,
correctly in my view, that between 9h30 and 13h00 the accused had the
opportunity and the time to go back to the flat.
Both his
office and the flat were within the same complex and less than a five
(5)
minute walk apart.
[62]
In my view the totality of the
State’s
evidence is so
overwhelming that it can be concluded that accused 1’s alibi
when placed in the context of the evidence as
a whole cannot be
reasonably possibly true. When it is considered that accused 1
was a poor witness who had no qualms in
fabricating his evidence, I
am satisfied that his version must be rejected as false beyond
reasonable doubt. If it is accepted
that the complainant was
sexually penetrated on 25 August 2021 and accused 1 is not the
perpetrator, then the only conclusion is
that the complainant is
substituting the real perpetrator with accused 1. Such a
conclusion is farfetched and improbable
as correctly submitted by
Mr
Mgenge
. Accused 1 has not produced a shred of evidence
regarding what he was doing at work before 13h00 on 25 August 2021.
He knew on that very day that he was accused of rape. It was a
simple matter for him to produce the work he was doing in
substantiation of his
alibi.
I must hasten to add I am
alive to the fact that he does not have to prove his
alibi
.
In the circumstances of this case, his mere say so that he was at
work from the morning until 13h00 is wholly insufficient
in light of
the evidence tendered by the
State
.
[63]
The criticism of the evidence against the accused relating to the
sexual assault and the rape on 25 August
2021 is without merit.
It selectively considers the evidence instead of taking a holistic
approach to the entirety of the
evidence before court regarding the
events of that day.
[64]
Turning to accused 2, the complainant and her grandmother both
testified that they had informed her about
the December 2018
incident. The complainant states that she reported the fifth
and the sixth incident during the year 2020
to accused 2. I am
satisfied by the complainant’s testimony that she had indeed
informed her mother about the December
2018 incident. I am
likewise satisfied that the grandmother had come to
East London
for the sole purpose of informing accused 2 about the December 2018
incident. If accused 2’s denials were to be believed
the
grandmother,
Mrs N[...]
never visited
East London
between December 2017 until May/June 2019 when accused 2 was
afflicted with blindness. I say so for the reason that accused
2 has maintained throughout that
Mrs N[...]
never visited
while she was cohabiting with accused 1.
[65]
When the evidence is considered holistically accused 2’s
testimony is highly improbable. All
the witnesses who are
members of the
N[...]
family were unanimous that
Mrs N[...]
visited accused 2 when she was seriously ill. The uncontested
evidence is that accused 2 had been ill from her discharge
at police
college in December 2017 throughout the material time.
[66]
I find the denials by accused 2 to ring hollow. I was very
impressed with
Mrs
N[...]
as a witness who was clear,
honest and credible. I could only imagine the emotional turmoil
she went through testifying against
her own daughter whom she clearly
loves and cares deeply about. But to her credit she testified
truthfully and honestly.
The denials by accused 2 are without
merit.
[67]
In the alternative, accused 2 stated that even if she were told about
the sexual assault and the rape she
suffered from a medical condition
which caused her temporary mental incapacity in the form of
forgetfulness. In these circumstances
she could not be able to
report to the police what she had been told as she would have
forgotten it. The alternate defence
only needs to be stated for
its flaws to become apparent. The underlying medical condition
was not disclosed to the court,
as it is her right to decide.
However, such an election has consequences. The court is not
able to properly assess
whether the forgetfulness really constituted
temporary mental incapacity which would excuse her failure to report
the offence.
[68]
The forgetfulness, as I understood it, was a symptom of the
underlying medical condition. This type
of defence required a
medically qualified person to explain to the court what exactly the
symptom entailed. Was this a permanent
or temporary amnesia?
Was memory regained at any stage? None of the required evidence
was tendered ostensibly due to
Dr Mgwedli
being recalcitrant
to come to court. In my view it was a simple matter of having a
subpoena prepared for
Dr Mgwedli.
Such was not done to
compel an otherwise available witness. As a result, the
evidence before court regarding the forgetfulness
falls woefully
short of the required standard for the court to determine that indeed
it constituted temporary mental incapacity
which would excuse her
failure to report to the police. In the circumstances her
defence cannot be sustained.
[69]
In the result the following verdict will issue:
Accused 1
:
69.1 He is
found guilty of the sexual assault of the complainant during December
2018 and 25 August 2021.
69.2 He is
found guilty of the rape of the complainant on 25 August 2021.
Accused 2
:
69.3 She
is found guilty for failing to report a sexual offence committed
against a child to the police in contravention
of
sec 54(1)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
.
T MALUSI
JUDGE OF THE HIGH
COURT
Appearances
:
For
the State:
Advocate
Mgenge
instructed by
Director
of Public Prosecutions
MAKHANDA
For
the Accused 1:
Mr
Skade
instructed by
Workerslife
PGC
House
273
Paul Kruger Street
PRETORIA
For
the Accused 2:
Mr
Nokhwali
instructed by
Private
instructions
TSOLO
Heard:
13,
14, 15 & 16 February 2023
15,
16, 17, 18 & 19 May 2023
12,
13 & 14 June 2023
18,
19, 20 & 21 September 2023
26,
27 & 28 February 2024
Delivered:
29
February 2024
[1]
S v
Vilakazi
2009
(1) SACR 552
(SCA) at para 21.
[2]
See S v
Artman
1968
(3) SA 339
(A) at 341C.
[3]
S v
Kruger
2014
(1) SACR 647
(SCA) at para 9.
[4]
S
v Kruger ibid
.
[5]
S
v Hlongwane
1959
(3) SA 337
(A) at 341A.