IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: A188/2022
District Case No: MSH 201/2018
REPORTABLE
In the matter between:
JASON ABRAHAMS Appellant
And
THE STATE Respondent
Coram: Kusevitsky, J et Francis, J et Bremridge, AJ
Heard: 08 September 2023
Delivered: 20 May 2024
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KUSEVITSKY, J
[1] The Appellant was arraigned in the Mossel Bay Regional Court on one count
of rape of a minor child aged 13 years old.
1 He was legally represented at all
material times and pleaded not guilty on 22 October 2019. He was subsequently
convicted and sentenced to fifteen years’ imprisonment. He was also declared unfit
to possess a firearm and his name entered into the National Register for Sex
1 Contravening Section 3 of the Sexual Offences and Related Matters Act 32 of 2007 as amended
read with the provisions of section 51(1) of the Criminal Law Amendment Act, No. 105 of 1997, as
amended.
2
Offenders in terms of section s 50(2) of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007.
[2] When reading the transcript, it is evident that the presiding officer, Ms Yono
passed away shortly after the Appellant’s conviction but prior to his sentencing. The
record had to be transcribed in order for another presiding officer to complete the
sentencing part for the trial. That was duly done and the matter proceeded to
sentencing in terms of section 275 of the Criminal Proceedings Act after the pre-
sentencing and victim impact reports were obtained. He comes before this court on
appeal in respect of conviction only, with leave having been granted in that respect
by the lower court on 22 July 2021.
[3] I do not propose to rehash the entire evidence as contained in the record; a
summary of the evidence as it pertains to the appeal will suffice. I may add that both
the heads of argument made reference to an incomplete record insofar as the cross-
examination of the medical officer was concerned. However, the record was duly
supplemented by the hearing of the matter and the parties satisfied that the record
was in order.
[4] The state relied on three witnesses; the Complainant, the first report Ms
Dumat and the medical doctor. The Appellant testified and relied on an alibi witness
as his defence.
[5] The Complainant testified via an intermediary. She was 15 years old at the
time of her evidence. The Appellant is her mother’s ex-boyfriend and a daughter was
3
born from that relationship. She testified that her mother ended the relationship with
the Appellant but he would always come to their house on weekends and threaten
her mother for ending the relationship. She could not recall the year that they had
ended the relationship. She could also not recall the date when the incident
occurred. When pressed and prompted by the prosecutor about a possible time
period, she stated that it was towards the end of June 2017.
[6] On the night in question, she and her sister, who was three years old at the
time, were alone at home one Saturday night whilst her mother was drinking at a
tavern. At around midnight, the Appellant knocked on the door. The Complainant
initially refused him entry saying that her mother did not want him there. She later
agreed to let him in when he said that he wanted to see his daughter. The
Complainant opened the door and went back to watching TV. The Appellant went to
lay next to his sleeping daughter. After an hour, the Appellant told the Complainant
to lay on the bed where he was. He then proceeded to touch her. When she asked
what he was doing, he answered that he was not going to hurt her. When she
continuously tried to push his hands off of her, he slapped her in the face. It was
evident that during this evidence, the proceedings had to be paused by the presiding
officer because the witness was crying and emotional.
[7] After slapping her, the Appellant proceeded to pull down her jeans and
underwear. She tried to fight him off by kicking him. He then took out a knife and
held it against her stomach, telling her to lay still. He then removed his pants and
raped her by putting his penis into her vagina. When he was done, he took her
panties and put it in his pocket. The sheet was stained in blood. He then told her to
4
hide the sheet before her mother returned. She did as she was told and hid the sheet
in a cupboard between some clothes. She said that she did this because he told her
that if she were to tell anyone about what had happened, then he would kill her. He
also took her pair of jeans. When he left, she lay on the bed crying. Her mother
returned later from the tavern inebriated. She did not tell her mother what had
happened as she was scared of the threat made against her by the Appellant. After
that incident, she no longer slept at home during weekends. Instead, she took her
sister and they went to sleep at her grandmother’s house. Her mother enquired as to
why she did this and she answered that it was because she (her mother) left them
alone on their own during weekends.
[8] Approximately three months later, her mother and sister tragically perished
when their bungalow caught fire and burnt down. After her mother and sister passed
away, she went to stay with her aunt. During the following year, she eventually
confided in her father’s girlfriend, Ms Dumat, that she had been molested and
threatened. A week later, her aunt took her to the police station. When asked why
she did not confide in her mother, she stated that there were many times that she
wanted to, but she was afraid that the Appellant would do something to her, knowing
how he mistreated her mother.
[9] During cross-examination, she maintained that the Appellant would often
threaten her mother over week-ends. She also agreed that there were no problems
between her and the Appellant. According to the Appellant, the Complainant’s family
blamed him for the death of her mother and sister. She agreed, saying that
according to the community, he was the last person that was seen in the vicinity of
5
their home. The Appellant, however, was ostensibly in prison at the time of the death
of her mother. This evidence was later refuted. When asked if she was angry at the
Appellant for the death of her mother, she said that she was because the community
had led her to believe that he was responsible for their deaths.
[10] She confirmed that the bloodied sheet had burnt and been destroyed when
the bungalow that her mother and sister had perished in had gone up in flames.
When it was put to her that the Appellant denied that he had assaulted her mother,
the Complainant insisted that he was lying saying ‘Hy het…my ma se broers het al
gesien hoe het hy my ma abuse in die huis’. She also reiterated that ‘Dit is Jason se
eie broer wat dit gesien het.’”
[11] After the death of her mother she went to live with her aunt. She admitted that
she started to be become ‘difficult’ after the anxiety that she felt after the rape and
her mother and sister’s subsequent deaths. She stated that she found it difficult to
cope. A decision was made for her to move to her father. She acknowledged that
she was a problem at that time and did not listen. She started to drink alcohol and
smoke and started skipping school. She acknowledged that her father was angry at
her behaviour. When her step-mother sat her down one day after repeatedly asking
her what the matter was and why she was behaving in that manner, she decided to
confide in her and told her about what the Appellant had done. She did not go into
detail about the rape. She said that she did not mention anything before because the
Appellant had threatened her. Ms Dumat then told her father and he wanted to go to
the police station immediately. The Complainant refused to go with and her father
said that he could not go to the police station without her. In that same week she
6
also told her cousin about the rape and asked her not to tell anyone. Her aunt found
out a week later after she confided in her cousin. After speaking to her aunt, they
had a family meeting and that is how her aunt came to be the one to take her to the
police station and hospital the following day.
[12] The Complainant testified that she saw the Appellant a few days after the
funeral where he sympathised with her. This was denied by the Appellant despite the
insistence by the Complainant that this occurred in the presence of a friend in the
neighbourhood of Asla. It was also put to the Complainant that she was present
when the Complainant’s family went to the Appellant’s home where they assaulted
him, and she too assaulted him by throwing a brick and hitting him with a broomstick.
The Complainant however explained that she had not been present when her family
went to the home of the Appellant. She stated that when she and her aunt were on
their way to the police station to report the rape, her aunt received a call from the
family to say that the Appellant was at the house and they decided to return to the
house. She denied that she had thrown a brick at him but had indeed hit him with a
broomstick.
[13] The Appellant denied the rape accusations alleging that the Complainant and
her family had fabricated the rape charge in response to their belief that he was
responsible for the death of her mother. The Complainant was adamant, saying
“maar hy het dit aan my gedoen. Ek sal nooit oor sulke goete lieg nie.” She
confirmed that her mother wanted to take out an interdict against the Appellant
because of all the threats. She was also criticized for allowing the Appellant into her
home when her mother chased him away instead. She was consistent in saying that
7
she allowed him in because he had asked to see his child. She also testified that she
was afraid to tell her mother because she thought her mother would not believe her
and because of his threats.
[14] Ms Dumat confirmed the evidence of the Complainant. She did not really
know the Appellant. She was in a relationship with the Complainant’s father for five
years. She confirmed that the Complainant became difficult after moving in with them
after the death of her mother. The Complainant’s father also accused her of not
being a virgin. She repeatedly told the Complainant that if she had problems, then
she could talk to her. After a while, the Complainant informed her that the Appellant
had raped her and that she was too afraid to go to the police station because the
Appellant had told that that he would hurt her.
[15] The Complainant was 13 years old when the rape occurred, 14 years old
when the J88 was completed, and 15 years old when she testified. The J88 was
completed
2 by Dr Nzima who had performed her examination almost a year and a
half after the alleged incident in June 2017. Under the history of the alleged assault,
Dr Nzima noted the following: “In June 2017 the patient was allegedly sexually assaulted by
her late mother’s ex-boyfriend. There were no other adults at home, only her and the baby.” The
Complainant’s hymen was not in tact which was suggestive of prior penetration. The
rest of the gynaecological examination did not suggest that the Complainant was
currently sexually active. During cross-examination, much was made of the fact that
the Complainant was not questioned as to whether she had a history of being
sexually active. The doctor explained that there is no provision for such questions,
2 Completed on 5 October 2018
8
but in any event the Complainant indicated to her that she was allegedly sexually
assaulted by her late mother’s ex-boyfriend and she pertinently said that she was
raped.
[16] The Appellant testified in his own defence and his version was based on a
bare denial of the charges as he states that he was in prison at the time that the
alleged offence was committed. He averred that the rape charge was a fabrication by
the Complainant and her family as he was suspected of causing the fire that resulted
in the death of the Complainant’s mother. He testified that he was ‘outside’ in June
2017 and residing at his mother’s house at 7th Avenue. He confirmed that he and the
Complainant’s mother’s relationship was not good by the time that they ended their
relationship. However, he had a good relationship with the Complainant even after
the break-up with her mother.
[17] He denied that he raped the Complainant as she alleged in late June 2017 as
he was in prison. A letter from Correctional Serves obtained by the defence indicates
that the Appellant was incarcerated at George Prison from 7 June 2017 until 28
August 2017. It is unknown when he was released but the letter indicates that he
was again incarcerated on 10 November 2017 until 23 January 2018. He did not see
the Complainant after he was released from prison nor when the Complainant’s
mother died. The only time that he saw the Complainant again was when the family
came to his house to confront him and allegedly assaulted him after the family had
found out about the rape. This was in 2018. He denied ever going to the
Complainant’s house after the break-up at the end of 2016 saying that his daughter
was always brought to his mother’s house. He confirmed that he was placed in
9
custody on 7 June 2017, the death of the mother occurred in October 2017 and he
was again taken into custody on 10 November 2017. He denied the Complainant’s
evidence that she saw him after the death of her mother in the street and that he
sympathised with her.
[18] According to the Appellant, he ended the relationship with the Complainant’s
mother and not the other way around. He says that the Complainant’s mother was
the one that wanted him to continue visiting her; had said that she still loved him and
still wanted him to come to the house. The relationship ostensibly ended because
the family put pressure on her to end it, but at the end of the day, he insists that he is
the one that ended the relationship with her. It was incorrectly put to the Complainant
that the Appellant’s version was that he was incarcerated at the time of the death of
the mother. He conceded that he was ‘outside’ when the bungalow burned down.
Evaluation
[19] It is settled law that in a matter such as the present, this court’s powers to
interfere on appeal with the findings of fact of the trial court are limited in the
absence of demonstrable and material misdirection. Where there is no misdirection
on fact, the presumption is that its findings are correct, and the appellate court will
only interfere with them if it is convinced that they are wrong.
[20] The Appellant alleges that the court misdirected itself when it held that the
Complainant had no motive to falsely incriminate the Appellant. It was also argued
the Complainant being a single witness, the court erred in finding that her evidence
10
was clear and satisfactory in all material respects and should not have accepted her
evidence as being reliable and trustworthy. Furthermore, given that the State did not
dispute that he was in custody at the end of June 2017, it could not be said that the
State had proved its case beyond a reasonable doubt. The Complainant was also
criticized for the delay in which the incident was reported, and argued that the court
erred in finding that the evidence of the doctor had corroborated the Complainant’s
version. It was further argued that the Complainant could have reported the incident
to her grandmother and failed to do so.
[21] As a starting point, the court in Maila v S 3 reaffirmed the principles to be
considered in the evidence of a single witness. In that case, the complainant was a
girl child, aged 9 years at the time of the incident. Mocumie JA stated that for many
years, the evidence of a child witness, particularly as a single witness, was treated
with caution. This was because cases prior to the advent of the Constitution (which
provides in s 9 for equality of all before the law) stated inter alia that a child witness
could be manipulated to falsely implicate a particular person as the perpetrator
(thereby substituting the accused person for the real perpetrator). To ensure that the
evidence of a child witness can be relied upon as provided in s 208 of the Criminal
Procedure Act4, this Court stated in Woji v Santam Insurance Co Ltd,5 that a court
must be satisfied that their evidence is trustworthy. It noted factors which courts must
take into account to come to the conclusion that the evidence is trustworthy, without
creating a closed list. In this regard, the court held:
“‘Trustworthiness . . . depends on factors such as the child’s power of observation, his
power of recollection, and his power of narration on the specific matter to be
testified…His capacity of observation will depend on whether he appears “intelligent
enough to observe”. Whether he has the capacity of recollection will depend again on
3 (429/2022) [2023] ZASCA 3 (23 January 2023) at para 17
4 Section 208 of the Criminal Procedure Act provides that “An accused may be convicted of any
offence on the single evidence of any competent witness.’
5 1981 (1) SA 1020 (A) at 1028B-D
11
whether he has sufficient years of discretion “to remember what occurs” while
the capacity of narration or communication raises the question whether the child has the
“capacity to understand the questions put, and to frame and express intelligent answers.”’
(Emphasis added.)
[22] In para 18 of Maila6, the court further stated that since Woji , the court of
appeal has cautioned against what is now commonly known as the double
cautionary rule. It has stated that the double cautionary rule should not be used to
disadvantage a child witness on that basis alone. The evidence of a child witness
must be considered as a whole, taking into account all the evidence. This means
that, at the end of the case, the single child witness’s evidence, tested through (in
most cases, rigorous) cross-examination, should be ‘trustworthy’. This is dependent
on whether the child witness could narrate their story and communicate
appropriately, could answer questions posed and then frame and express intelligent
answers. Furthermore, the child witness’s evidence must not have changed
dramatically; the essence of the allegations should still stand. Once this is the case,
a court is bound to accept the evidence as satisfactory in all respects; having
considered it against that of an accused person. ‘Satisfactory in all respects’ should
not mean the evidence line-by-line. But, in the overall scheme of things, accepting
the discrepancies that may have crept in, the evidence can be relied upon to decide
upon the guilt of an accused person. What the court in S v Hadebe[6] calls the
necessity to step back a pace (after a detailed and critical examination of each and
every component in the body of evidence), lest one may fail to see the wood for the
trees. This position has been crystallized by the Legislature in s 60 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, which
provides that:
‘Notwithstanding any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged commission of a sexual offence pending before
that court, with caution, on account of the nature of the offence.’
6 footnotes omitted
12
[23] It is quite correct that the evidence of the Complainant should be approached
with caution for the reason that she is a single child witness. The Appellant in this
regard relied on S v Hanekom 2011 (1) SACR 430 (WCC). In this matter, an appeal
court found that the court a quo did not take heed of the cautionary principles relating
to a child witness in that there was a lapse of time from the time of the incident to the
reporting thereof of three years. It bears mention that the complainant in that case
was five years old at the time of the incident and eight years old at the time of
testifying. Secondly , that court found her to be evasive and had a motive to
incriminate. This was ostensibly based on the fact that there was a discrepancy in
the chronological order of how and when the complainant was sexually abused.
7 I
am not convinced that this is such a case. I say this because there the court
criticised a complainant for not reporting the abuse when she was five years old; she
was being evasive because she could not remember three years down the line if the
incident had occurred on a Tuesday or Wednesday; that five year olds have the
emotional capacity to have ‘motives’ to incriminate, and the fact that chronology of
the incident
8, warranted a finding against the eight year old that she was evasive and
therefore unreliable.
[24] The court in Hanekom stated that the court should be ‘alert’ when there is the
lapse of significant period of time between the incident complained of and the trial.
As I mentioned before, the complainant in Hanekom was a mere 5-year-old girl child
when the alleged incident had occurred. However, the court in Hanekom disregarded
7 Para 17 of that judgment
8 whether the appellant there had first masturbated himself then cleaned the carpet and went to the
bathroom to clean up before inserting his finger into her vagina or whether he first inserted his finger
into her vagina and then masturbated himself and then went to the bathroom to clean up
13
what the Appellate Court held regarding delays in matters such as this. In Monageng
v the State9 Maya JA (as she then was), articulated the following regarding the delay
in reporting:
“[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 individualised emotional responses to the assault. 10 Some of the immediate effects
are frozen fright or cognitive dissociation, shock, numbness and disbelief. 11 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.12 Significantly, the newly passed Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 provides, in s 59, 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. ” (Own emphasis)
[25] The court a quo was satisfied with the evidence of the Complainant, adding
that it was straightforward with no contradictions. Whilst she was emotional while
testifying, she did not deviate from her evidence whilst subjected to a lengthy cross-
examination. The court dealt with the ‘alibi’ defence of the Appellant fully in her
judgment. In the judgment of the court a quo, the incorrect date is cited for the
9 (590/06) [2008] ZASCA 129 (1 October 2008)
10 S Bollen et al ‘Violence Against Women in Metropolitan South Africa: A study on impact and service
delivery’ Institute for Security Studies (1999) Monograph No 41.
11 S Ullman & R A Knight ‘Women’s Resistance Strategies to Different Rapist Types’ (1995) 22 No 3
Criminal Justice & Behaviour 263, 280; S Katz & M A Mazur Understanding the Rape Victim: A
Synthesis of Research Findings (1979) 172, 173. M Symonds ‘Victims of Violence: Psychological
effects and after-effects’ (1975) 35 (1) American Journal of Psychoanalysis 19 - 726, 22.
12 T B Goodman-Brown et al ‘Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse’ Child
Abuse & Neglect 27 (2003) 525-540.
14
occurrence of the alleged incident. This seems to be a feature of this matter.13 At line
2014 the court incorrectly states that the Complainant’s evidence was that she was
home on 8 August 2004 when the alleged incident occurred. That was not the
Complainant’s evidence and neither is it the year that the alleged incident is
purported to have occurred, which was in 2017. This date is in fact the date of birth
of the Complainant. It can therefore be safely accepted that it was a genuine error by
the Magistrate in that regard.
[26] The argument persisted with in this court is that court erred in accepting that
the State had proved its case beyond a reasonable doubt especially in light of the
fact that the charge against the Appellant was that the offence was committed in
June 2017, whilst the Complainant had indicated that the offence took place towards
the middle to end of June 2017 and the Appellant had handed in a document
indicating that he had been incarcerated at the George Department of Correctional
Services. The Respondent rightly argued that section 3 of the Criminal Law (Sexual
Offences and Related matters) Amendment Act 32 of 2007 does not require a
specific date as an essential to the charge. Section 84 of the Criminal Procedure Act
51 of 1977 inter alia provides that a charge shall set forth the relevant offence in
such a manner and with such particulars as to the time and place at which the
offence is alleged to have been committed and the person against whom the offence
is alleged to have been committed. Where those particulars are unknown to the
prosecutor, it shall be sufficient to state that fact in the charge.
13 The Victim Impact report at para 6 p3 indicates the alleged incident to have occurred during July
2017.
14 page 196 of the Record
15
[27] In casu, the charge sheet reads “IN THAT upon or about / during June
2017…”. The court a quo found that it was conceivable that the thirteen-year-old
child had made a mistake by saying that the incident had occurred towards the end
of June 2017 when the Appellant was in custody. The court noted that the
Complainant indicated when asked when the incident occurred, that she answered
that she could not recall the date although she knew that it occurred on a Saturday
after midnight and that it occurred in the year 2017. The court also noted that the
Complainant had indicated that the incident occurred in June but she could not recall
when in June it had occurred. She only said that it was towards the end of June
when the prosecutor asked her whether it was in the beginning, the middle or end of
June, that she answered that it the latter, i.e. the end of June. The court indicated
that this was an honest mistake by the child given the fact that she had initially
indicated that she could not recall when the incident occurred. I am in agreement
with the court a quo’s assessment in this regard. It is common cause that the
incident occurred in 2017 when the Complainant was thirteen years old; the matter
only reported a year later in 2018 and she testified two years after the incident. It is
conceivable and more than probable that she would not have been able to recall
exactly when the incident occurred. The court, correctly, took into account the totality
of the evidence and could find no reason why the Complainant would have wanted to
falsely implicate the Appellant when she was steadfast in initially not reporting the
incident.
[28] The court also dealt with the allegation of the fabrication. I am in agreement
with the Magistrate that had there been an intention to falsely implicate the
Appellant, then it is curious why the family ostensibly waited more than a year after
16
the alleged rape to falsely implicate the Appellant. Secondly, there were various
opportunities after she had confided in Ms Dumat to falsely incriminate the Appellant.
However, the evidence shows that on at least three occasions, she refused to go the
police station. These are hardly the actions of a manipulated person wanting to
falsely incriminate someone. It is also clear that the Complainant was still fearful of
the threats made by the Appellant against her, that he would kill her, if she reported
the matter. One can hardly imagine what kind of impact such a threat would have on
a thirteen- year-old child, who herself had witnessed the abuse of the mother at the
hands of the Appellant according to her evidence. And, in my view, had the
Complainant the motive, this charge would have been brought at the time of her
mother’s death, which occurred the previous year.
[29] The final aspect is the Appellant’s contention that the Complainant’s second
supposed motive to falsely implicate the Appellant is because of the problematic
behaviour that she exhibited at her aunt’s and thereafter at her father’s home and the
latter’s accusations as to her celibacy. This is sadly not a new feature which presents
itself in matters such as these. Research and studies have concluded that in
incidents of rape, the rape survivor in some cases experience a form of what is
known as ‘Rape Trauma Syndrome’, which is the psychological trauma experienced
by the survivor that includes disruptions to normal physical, emotional, cognitive and
interpersonal behaviour.
15 In a research paper16, studies found that among
survivors of childhood sexual abuse, the most common coping strategies are
avoidance and denial in response to the abuse. Rape survivors are also the largest
group with Post Traumatic Stress Disorder. Furthermore, the psychological
15 Burgess, Ann Wolbert; Lynda Lytle Holmstrom (1974), “Rape Trauma Syndrome”. Am J Psychiatry.
16 National Library of Medicine “Psychol Trauma; “A Longitudinal Study of the Aftermath of Rape
among Rural South African Women” Gail E Wyatt and Others
17
consequences of rape are sometimes influenced by the characteristics of the event;
the force or severity of the event; the immediate psychological reaction to the
assault, for example self-blame, loss of self esteem, shame and fear and the use of
denial and avoidance coping. Other research also found that survivors of sexual
abuse more often than not, turned to substance abuse as a means of denial, coping
or avoidance. Beliefs about rape and experiences of social undermining 17 by the
survivor’s social resources for support may also increase the likelihood of engaging
in self-destructive or risky behaviours, such as heavy drinking following the rape. It is
against this backdrop that the behaviour of this Complainant at her aunt and her
father is to be evaluated. It is clear that the Complainant suffered from anxiety and
was unable to deal with the double trauma of the rape and the loss of her mother
and sister in such a short period of time. Her turning to substance abuse such as
alcohol would, if one takes into account the research, not be unusual. Furthermore, I
believe the attitude of her father compounded and exacerbated her already fragile
emotional state, since there is a high prevalence of rape survivors who experience
high levels of shame, self-blame and internalised stigma.
18 It is not an unusual
feature to encounter criticisms such as this against complainants in matters
pertaining to sexual offences. In my view, the time has come for this narrative to be
changed, lest it serves to inadvertently reinforce or reaffirm the survivor’s already
compromised belief that they are to blame for these violations perpetrated against
them. The criticism therefore against the Complainant in this regard is meritless.
[30] When one looks at the totality of the evidence, it is evident that the court
highlighted that the Complainant and the Appellant had a good relationship and a
17 Gidycz et al 2006, Chin et al, 2010
18 South African rape survivors’ expressions of shame, self-blame and internalised stigma, Samantha
Willan et al,Science Direct, Vol. 5, June 2024
18
relationship of trust and it was because of this and his request to see his two-year-
old daughter that made the thirteen-year-old open the door for the Appellant. The
court was alive to the fact that it was dealing with a single child witness and the
attendant cautionary principles. The court was similarly alive to the approach that it
adopted where courts are faced with two irreconcilable differences, the findings of
credibility of a witness, their reliability and the probabilities.19
[31] I am also in agreement with the court a quo’s assessment of the nature of the
detail given by the Complainant and that a child victim of sexual assault would not
fantasize over things that are beyond their own direct experience.
20 The evidence
was that the Complainant had no history of sexual activity other than the rape
incident. This was confirmed by the doctor who had stated that apart from the torn
hymen, there was no evidence that the child was sexually active. The detail in which
she described the assault was overwhelming. She described pushing the Appellant’s
hands away from her body and then he proceeded to slap her in her face and pulled
out a knife to force her into submission. The bloodied sheet was similarly telling -
which evidence was subsequently destroyed when the bungalow of the Complainant
burnt down. So too was the evidence of her underwear and pants which was
removed by the Appellant on the same night. The court accepted the evidence of the
Complainant and rejected the evidence of the Appellant, finding that the State had
succeeded in discharging its burden of proof beyond a reasonable doubt against the
Appellant. I can find no evidence of misdirection in the court a quo’s finding in this
regard.
19 Stellenbosch Farmer’s Winery Group Ltd and Another v Martell & Cie SA and Others (427/01)
[2002] ZASCA 98 (6 September 2002)
20 See the comments of Cameron JA and Nugent JA in S v M 2006 (1) SACR 135
19
[32] Accordingly, I would make the following order:
A. The appeal against conviction is dismissed.
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KUSEVITSKY, J
I agree with the judgment of Kusevitsky J.
___________________
FRANCIS, J
I agree.
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BREMRIDGE, AJ