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[2024] ZAECMKHC 94
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Dyifili v S (CA&R131/2024) [2024] ZAECMKHC 94 (22 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: CA&R131/2024
In the matter between:
LINDIKHAYA DYIFILI
Appellant
and
THE STATE
Respondent
JUDGMENT
Govindjee J
[1]
The appellant exercises an automatic right
to appeal against his conviction for the rape of a female
complainant, aged 11, and sentence
of life imprisonment.
[2]
The basis of the appeal against conviction
is that the trial court erred in its assessment of the evidence,
failed to apply the
necessary caution to the evidence of the single
witness complainant, and erroneously concluded that the appellant’s
guilt
had been proved beyond reasonable doubt, particularly in
respect of the element of sexual penetration. On sentence, the
appellant
argues that his cumulative circumstances were such that a
deviation from the prescribed minimum sentence was warranted.
The evidence
[3]
Following a plea of not guilty, the state
relied on the evidence of the complainant (LD), her grandmother and a
policeman, as well
as the report of the doctor who examined her after
the incident.
[4]
Before turning to the assessment of the
evidence of the complainant, it is useful to summarise the evidence
of the other two state
witnesses and consider the medical report. The
incident occurred on 28 October 2019. The following morning, the
complainant was
examined by a medical practitioner, who concluded
that there was ‘no evidence of fresh injuries seen, however,
this does
not exclude the possibility of vaginal penetration’.
[5]
KG, the complainant’s grandmother,
lived with the complainant at the time of the incident. She had
noticed the child’s
absence on the day of the incident and
searched for her. KG was particularly concerned given that the child
suffered from a mental
condition and received treatment to assist her
thinking process. Community members informed KG that the complainant
had been seen
with a young man entering a particular container. After
dark, she reported the matter to the police, who accompanied her to
the
area in a police van. She was not with the police when they found
the complainant with the accused and returned to the police van.
The
complainant reported to KG that she had been raped by the accused.
[6]
KG explained that the complainant was
initially overwhelmed by anger and refused to talk after the
incident. Her condition improved
after treatment by a clinical
psychologist, so that she was in a position to testify at the time of
the trial. KG testified that
the complainant had previously been
raped by a person who was now in prison.
[7]
Sergeant Rutywa testified that he had been
on duty at the time of the report of the missing child. He and
another officer had proceeded
to a ‘shack’ where loud
music was playing. The door was locked and they had knocked for
approximately 30 minutes. The
appellant had opened the door wearing
only boxer shorts. The complainant was found hiding behind the door
and wearing only her
panties. She explained to the police that the
appellant had instructed her to stand behind the door and that she
had been raped.
Her clothes, and that of the appellant, were placed
near his bed and she appeared to have been crying.
[8]
Prior to the trial, the complainant, who
was now 14 years of age, was assessed by a clinical psychologist as a
person capable of
speaking the truth and testifying. She had
previously been assessed as unable to do so. The expert’s view
was that her evidence
needed to be assessed ‘in terms of an
unstable mental health history, including previous psychotic mental
disorder, and continued
cognitive impairment’. Her so-called
mental age was assessed as seven.
[9]
The complainant’s evidence was that
the appellant had grabbed her by the hand while she was walking and
she had smacked him
with an open hand. The appellant subsequently
bought her cooldrink and took her involuntarily to his shack. He was
telling her
that he loved her and cooked for her at the shack. The
two sat together until nightfall and conversed. At some point he had
enquired
about her age and was told that she was 11 years old. The
appellant undressed her pants and panties and undressed himself. He
grabbed
her and placed her on top of the bed, climbed on top of her
and raped her. Thereafter, he increased the volume of the radio. The
complainant was still inside the shack when the police arrived. The
appellant dressed when the police arrived and opened the door.
[10]
The complainant confirmed that she had been
raped on a previous occasion by another person. During
cross-examination, she testified
that the door had been open earlier
in the evening, when the appellant had cooked for her. She had made
no attempt to run away
and was in no rush to return home when they
ate food and conversed. The crux of her testimony was repeated during
cross-examination:
‘
Caps
[the accused] called me to the bed. I refused. He came and took me to
the bed…he got on top of me…he was not
wearing
clothes…he undressed me…he’s the one who
suggested that [I sleep with him]…I refused…he
climbed
on top of me inserting his urinating part into my urinating part…it
was painful, and I was sent to hospital…I
will say, Your
Worship, why will he insert his private part in mine, when I was only
11. Can you please ask him that?’
[11]
The complainant initially testified that
she and the appellant had been found naked by the police, but
conceded that they had in
fact been wearing underwear. By then, she
said that the intercourse had been completed. At some point she
testified that her grandmother
had told her that she had been raped,
which was why she had said so. She clarified, during re-examination,
that she had told the
police that she had been raped even before she
had narrated the story to her grandmother, who was in the van at the
time. When
it was put to her that the appellant would testify that
she had told him she was 16 years of age, she retorted that he was
‘sick’.
[12]
The appellant’s version was that he
had ‘proposed love’ to the complainant, who was his
‘girlfriend’.
This occurred after he had called the
complainant on the street and before they had walked together to his
shack. Once there, they
had slept and he had then started cooking.
When asked, she told him that she was 17 years of age. They sat and
lay on the bed for
some time until the police arrived. At that stage
there was no radio music playing. The appellant and the complainant
were underneath
the blanket and undressed.
[13]
During cross-examination, the appellant was
shown a photograph of the complainant that had been taken at the time
of the incident.
He estimated that the complainant was aged 13 at the
time. He later explained that, despite her appearance, he did not
consider
her to be that age because of their discussion. Still, he
had asked her about her age soon after they met ‘…because
I just like doing that … [and] I cannot have sexual
intercourse with a person that is very young.’
[14]
On his version, he had begged her to
accompany him to his home. They had an agreement that she would do so
after he proposed love
to her. He wanted her to sleep over. His
version changed in material respects during cross-examination. His
evidence was initially
that he had asked the complainant about her
age before they had proceeded to his home. Later he testified that he
had asked her
age when they were already at his house. More
significantly, he testified that he had not touched the complainant
even though they
were both lying at least semi-naked in his bed. He
became aroused during their conversation, which turned to matters of
love. This
was the root of why they had been together. He later
admitted that they had been touching each other and kissing, and
specifically
that he had touched her upper body, breast and neck area
with the intention of having sexual intercourse with her. Her hand
blocked
him or would be removed every time that he wanted to touch
her vagina. During that time, he asked her if they could have sexual
intercourse. He had refrained from doing so because he did not wish
to force her ‘if she is not ready’. Simultaneously
with
that decision, the police knocked at the door at approximately 21h00.
By that time, he had been with the complainant for approximately
five
or six hours.
The judgment of the
trial court
[15]
The trial court concluded that the
appellant had cooked for the complainant and purchased a drink for
her in order to reduce her
resistance to his advances. There could be
no mistaking the reality that she was a young child at the time,
particularly considering
the long period of time the appellant had
spent in her company. This assessment was also confirmed to some
extent by the appellant’s
assessment of her age when shown her
picture in court. Coupled to this, the complainant’s mental
condition and cognitive
challenges must also have been readily
apparent. As such, the ‘love proposal’ was a fiction. The
concessions made by
the appellant in respect of his physical
interaction with the complainant, contrary to the position he had
adopted earlier, weighed
heavily with the trial court. The
complainant’s version was accepted, the court concluding that
the state had proved its
case beyond reasonable doubt. As indicated,
the appellant was sentenced to life imprisonment in the absence of
substantial and
compelling circumstances sufficient to jusitify the
imposition of the prescribed sentence.
Conviction
[16]
The
key question on appeal is whether the complainant’s evidence
was sufficient proof of the appellant’s guilt
beyond
reasonable doubt, bearing in mind the danger of relying on the single
uncorroborated evidence of a child witness also suffering
from
cognitive impairment and with a history of unstable mental health.
The appropriate approach to adopt was summarised by Jones
J, on
behalf of a full court, in
Leve
v The State
:
[1]
‘
The
fundamental rule to be applied by a court of appeal is that, while
the appellant is entitled to a re-hearing because otherwise
the right
of appeal becomes illusory, a court of appeal is not at liberty to
depart from the trial court’s findings of fact
and credibility
unless they are vitiated by irregularity or unless an examination of
the record of evidence reveals that those
findings are patently
wrong. The trial court’s findings of fact and credibility are
presumed to be correct because the trial
court, and not the court of
appeal, has had the advantage of seeing and hearing the witnesses and
is in the best position to determine
where the truth lies … If
the trial judge does not misdirect himself on the facts or the law …
but instead demonstratably
subjects the evidence to careful scrutiny,
a court of appeal will not readily depart from his conclusions.’
[17]
The
same judge noted as follows in
S
v Dyira
:
[2]
‘
In
our law it is possible for an accused person to be convicted on the
single evidence of a competent witness
(section 208
of the
Criminal
Procedure Act No 52 of 1977
). 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 (
Rex
v Mokoena
,
1956 (3) SA 81
(AD) 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
(AD) at 162E
to 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 (
Viveiros
v S
[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 (Schmidt,
Law of Evidence
4 – 7).’
[18]
In
S
v Manda
,
the Appellate Division noted inherent dangers in relying upon the
uncorroborated evidence of a young child, including their
imaginativeness
and suggestibility, so that their evidence must be
scrutinised with care to the point of suspicion.
[3]
The cautionary rule that the evidence of a single witness must be
clear and satisfactory in every material respect does not imply,
however, that any criticism of that witness’ evidence, however
slender, precludes a conviction.
[4]
The court is entitled to convict on the evidence of a single witness
if it is satisfied beyond reasonable doubt that such evidence
is
true, and notwithstanding that the testimony was unsatisfactory in
some respect.
[19]
The magistrate made various efforts to
explain the basis for her conclusion. The complainant was found to be
an honest witness and
there was no basis for rejecting her evidence
in respect of the sexual penetration. The evidence was weighed by
considering its
merits and demerits before the magistrate determined
whether the complainant had told the truth. Although there was no
explicit
reference to the application of the necessary caution in the
assessment of the complainant’s testimony, the trial court
cannot
be faulted for the manner in which the evidence was analysed.
[20]
There
are various reasons for this conclusion. LD, despite being a child
witness with a cognitive impairment, consistently described
the
sexual penetration at the hands of the appellant. The record reveals
that LD’s testimony was guileless and not brought
into question
in any material respect during cross-examination. It must also be
noted that the complainant had previously been
a victim of
rape, her description of being sexually penetrated by the appellant
can hardly be mistaken. While she may have
been persuaded to eat,
drink and sit in his presence during the course of that evening,
having initially resisted his company,
she certainly did not invite
or consent to sexual penetration leaving aside the reality that any
perceived consent would have been
legally irrelevant given her age
and mental condition. Her evidence in respect of the music, and state
of undress, was corroborated.
The unsatisfactory components of her
testimony were limited to immaterial matters which were explicable
considering her age, level
of communication and the period of time
that had elapsed. The result is that the trial court analysed the
evidence holistically
[5]
and
correctly concluded that the state had proved the guilt of the
accused beyond reasonable doubt.
[21]
As for the appellant’s version of
events, there can be no doubt that his shifting recollection of what
had transpired was
a desperate attempt to avoid responsibility for
his actions. His version of events was simply not reasonably possibly
true when
considering the impression he made in the witness box, the
contradictions in his testimony and the striking improbability of
much
of what he suggested in the light of all the evidence considered
holistically. In particular, his testimony in respect of his
discussions
with LD regarding her age, his supposed love proposal,
and his subsequent self-restraint over a period of hours while he lay
undressed
with the complainant, was correctly rejected. His guilt was
proved beyond reasonable doubt.
Sentence
[22]
The appellant argued that the sentence of
life imprisonment was disproportionate when considering his personal
circumstances. In
particular, he placed reliance on a clean record
and the possibility of rehabilitation. He also argued that the rape
did not fall
within the worst category of such cases, emphasising
that the complainant had not suffered major injuries and that no
gratuitous
violence was used.
[23]
The imposition of sentence is pre-eminently
a matter for the discretion of the trial court. The trial court is
free to impose whatever
sentence it deems appropriate provided that
it exercises its discretion judicially and properly. Accordingly, the
trial court must
impose a sentence on the correct facts and must take
the correct legal position into account. The test to determine
whether a trial
court’s discretion has been exercised
‘judicially’ and ‘properly’ is whether the
sentence is vitiated
by irregularity or misdirection or is
disturbingly inappropriate.
[24]
The trial court properly considered the
interests of the appellant, the nature of the offence and the
interests of society in coming
to its conclusion on sentence. The
appellant’s lack of remorse was emphasised, bearing in mind
that he had falsely denied
even touching the complainant until
cross-examination revealed the contrary. The trial court also viewed
what had transpired in
its proper context: a child walking in the
street was accosted by an adult who took advantage of her innocence
and vulnerability
and ultimately raped her. The offence is abhorrent
and this court has time and time again lamented the pandemic of
sexual violence
that appears to plague this part of the country,
seemingly without any respite. The complainant will likely live with
the consequences
for the rest of her life. The magistrate determined
that the appellant’s clean record was not, on its own,
sufficient basis
to deviate from the prescribed minimum sentence.
That decision cannot be faulted as the exercise of an improper
discretion in the
circumstance. Nor indeed was there any other
factor, viewed in isolation or in totality, which would result in
that conclusion.
The sentence imposed was proportionate to the crime
and not vitiated by any impropriety. As a result, the appeal against
sentence
must be dismissed.
Order
[25]
The following order is issued:
The appeal against
conviction and sentence is dismissed.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree
M LOWE
JUDGE OF THE HIGH
COURT
Heard:
14
August 2024
Delivered:
22
August 2024
Appearances:
For
the Appellant:
Mr
H L Charles
Legal
Aid South Africa
69
High Street
Makhanda
Tel:
046 622 9350
HCharles@legal-aid.co.za
For
the Respondent:
Adv
D Govender
Director
of Public Prosecutions
94
High Street
Makhanda
Tel:
046 602 3000
Email:
DGovender@npa.gov.za
[1]
2011 (1) SACR 87
(ECG) para 8.
[2]
Unreported
Eastern Cape High Court, Grahamstown, Case No CC 222/07 dated 2 June
2009.
[3]
S
v Manda
1951
(3) SA 158
(A) at 162E – 163F.
[4]
R
v Bellingham
1955
(2) SA 566
(A) at 569. If has often been said that the exercise of
caution cannot be allowed to displace the exercise of common sense.
[5]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15.