Fortuin and Another v S (A17/2024) [2024] ZAWCHC 244 (5 September 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
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: A17/2024

In the matter between:

RAYDON FORTUIN First Appellant

EBEN FORTUIN Second Appellant

and

THE STATE Respondent

Coram: Justice V C Saldanha et Acting Justice M Adams

Heard: 03 May 2024

Delivered electronically: 05 September 2024


JUDGMENT


SALDANHA J:

[1] Mr. Raydon Fortuin and his brother, Mr. Eben Fortuin were convic ted in the Paarl
Regional Court, held at Tulbagh, of the rape of a 17 year old boy, Mr. JJ. The provisions
of the minimum sentence legislation applied to the charges . The appellants were each
sentenced by the regional magistrate Mrs. A. Immelman to life imprisonment . They
come before this court by way of an automatic right of appeal.

[2] The incidents occurred on 17 May 2020 at or near Klein Begin, Tulbagh where
each of the appellants unlawfully and intentionally committed an act of sexual
penetration with the complainant Mr. J .J by each of the appellants inserting their penis
into the anus of the complainant without his consent. The appellants were found to have
contravened the provisions of Section 3 read together with Sections 1, 55, 56(1), 57, 58,
59, 60 and 61 of t he Sexual Offences and related matters (amendment) Act 32 of 2007
read together with S ections 92(2), 94, 256, 257 and 261 of the Criminal Procedure Act
51 o f 19 77 (Rape) and read with the provisions of Sections 51 (1) and/or 52 1 of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended.

[3] The appellants were legally represented at the trial by Mr. O. Swanepoel, on the
instructions of Legal Aid South Africa.

[4] In dealing with the merits of the appeal or lack thereof , the judgment will, inter
alia, do so in the context of the unchallenged evidence led with regard to the intellectual
functioning of the complain ant, his ability to consent to sexual intercourse and his
competence to testify as a witness. In this regard the State tended the evidence of Ms.
Jeanine Hundermark, a clinical psychologist in private practice and also attached to
Cape Mental Health with regard to her assessment of the complainant and her findings.
The judgment will also deal with the medical examination and report (the J88), by the
authorised medical practitioner , Doctor SW Mukombe a locum doctor on duty at the
Ceres Hospital on the night of the incident. On account of Dr. Mukombe not being

1 Section 51(1) and/or 52 And Schedule 2 Part 1 of the Criminal Law Amendment Act 105 of 1997, as
amended is applicable in that:
Rape as contemplated in sec. 3 of the Criminal Law (Sexual offences and Related matters) Amendment
Act, 2007 when committed: (a)(i) in circumstances where the victim was raped more than once, whether
by the accused or by any co-perpetrator.
available to testify in person the State entered the J88 report into evidence through the
evidence of Dr. Marisa Crous, medical practitioner employed at the Ceres Hospital and
her interpretation and expert opinion in respect of the record als made by Dr. Mukombe.
The judgment will also deal with the admission of the J88 report on the basis that it was
both in fact and in law hearsay evidence and the subsequent evaluation of its probative
value in terms of Section 3(3)(c) of the Law of Evidence Act 19882.

[5] I will also remark on the management of the trial in the court a quo, which in my
view, led to a measure of confusion in respect of the evidence of the complainant and
which was compounded by the lengthy and at times excruciating ly repetitive and
unnecessary cross-examination by the defence of the complainant . The judgment will
also deal with remarks by this court with regard to the failure on the part of Doctor
Mukombe to have properly filled in the J88 and his failure or neglect to attend the
proceedings in the court a quo to personally testify at the trial . The judgment will also
refer to directives made by the court to the State at the hearing of the appeal with
regard to the need for trauma counselling for the complainant.

[6] The State, as indicated lead the evidence of Ms. Hundermark, that of the
complainant Mr. JJ, Ms. Katriena Daniels his foster mother and that of Doctor Crous.
Both the appellants testified in their own defen ce and elected not to call any of the alibi
witnesses they sought to raise and rely upon in their defence nor that of a Mr. Eltino
Baadjies who they contended would support a part of their version against that of the
complainant`s.

[7] The appellants challenged the ir conviction of the rapes by contending that the
regional magistrate erred in finding that the complainant ’s evidence was satisfactory in
all material respects. They also contended that the regional magistrate failed to exercise
caution in the evaluation of not only the evidence of the complainant as a single witness

2 Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed
that the person upon whose credibility the probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person does not l ater testify in such proceedings, the hearsay
evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of
subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.
but also that of the evidence of the complainant ’s foster mother Ms. Daniels as the first
report and so too the shortcomings in the J88 report which the appellants contended did
not support the complainant ’s evidence. The appellants also contended that the State
failed to prove that the complainant had properly identified the appellants as the
perpetrators of the offence . The appellants further contented that the court a quo erred
in not finding that the appellants version was reasonable possibly true, and for having
rejected their version.

[8] The appellants pleaded not guilty to the charges and elected not to disclose t he
basis of the ir defence. Their legal re presentative confirmed that they were informed of
the applicability of the provisions of the minimum sentence legislation, that if found guilty
of the charges and if they failed to establish substantial and compelling circumstances,
they each faced the prospect of life i mprisonment. The State indicated that it sought to
rely on the basis of a common purpose between the two appellan ts on the charges of
rape alternatively that each of them had separately committed the offence and a s a
result of what the State alleged was a mental disability suffered by the complainant.

[9] Ms. Hundermark wa s called as the first witness. Her written report was entered
into evidence with the consent of the defence. She explained that the complainant was
referred to the Cape Mental Health Society by the S exual Offences Court for the
purpose of an assessment to evaluate his level of intellectual functioning, his ability to
consent to sexual intercourse and his competence to testify as a witness. T he
information contained in her report and her findings were obtained in an interview with
the complainant and Ms. Daniels. She provided a brief history of the complainant who at
the time of the interview was 18 years old, unemployed and lived with his foster family in
Tulbagh. The complainant never knew his mother and was placed in the foster care of
Ms. Daniels during the first year of his life . It appeared that the complainant’s parents
had both abused alcohol, he was neglected as a child and that he sustained burns as
his parents had inadvertently set their shack alight wh ile under the influence of alcohol.
The complainant was diagnosed as suffering from fetal alcohol syndrome disorder and
all his childhood milestones were delayed. He also suffered from breathing problems as
a result of the smoke inhalation. He commenced schooling at the age of seven,
struggled t o cope with the academic demands of school and simply progressed each
year without satisfying the minimum requirements of each grade. Unfortunately, the
complainant had not been placed in a special school, began bunking and misbehaved.
He dropped out at the age of eleven years. Having little to do he was easily influenced
and began smoking cigarettes and later used substances. At the age of thirteen he was
physically attacked and hit with the flat side of a panga. He sustained a brain injury and
remained unconscious for f our days. After that , he had to learn to walk again, had
weakness on the right side of his body and developed epileptic seizures. In 2020, the
complainant’s foster mother tracked down his biological father in Beaufort West and the
complainant went to live with him for approximately a month . His father, however, was
homeless and survived on food found in garbage bins . Ms. Daniels arranged for the
complainant to return to her in Tulbagh.

[10] In respect of his current functioning Ms. Hundermark recorded that the
complainant was able to feed and dress himself, but his physical abilities were limited.
He sometimes struggled to put his shoes on and at times wore mismatched shoes. H e
did not bathe properly and needed daily reminding about hygiene practices. He refused
to assist with housework at home but would do odd jobs for others. He knew his
physical address and his age. However, he did not remember his date of birth or the
current day of the week nor the date . He was able to write his own name and part of his
nickname and could only copy simple words. He was able to identify some numbers and
letters of the alphabet but was otherwise unable to read or spell . He was able to identify
basic colours. He was also able to identify co ins and notes but not able to work with
money. He understood the functions of a clock but could not tell time . He had friends in
the neighborhood but was easily manipulated . In respect of his appearance and
behaviour in the interview Ms. Hunder mark noted t hat he was of average height and
build and had a pleasant smile. He came across as polite and accommodating and was
able to speak for himself . H is clothing was clean but shabby and during the formal
testing period attention and concentration difficulties w ere identified . The complainant
was given the opportunity to talk to Ms. Hundermark about the alleged rapes and his
reactions. S he explained that he was also given the opportunity to demonstrate the
alleged rapes with the help of atomically correct dolls. She recorded that the
complainant was unable to provide information about the impact on him of the alleged
rapes. His foster mot her reported that his behavior deteriorated after the alleged
incidents and that he was difficult to manage . Ms. Hundermark recorded that persons
who abuse substances do so more during stress as a way of self -medication and that
was clearly the position wi th the complainant. She stated that the complainant reported
that that he wished to give abusing substances up but did not know how to do so.

[11] Ms. Hundermark administered two separate tests with regard to the intellectual
quotient (IQ) ranges of the complainant according to the international classification of
diseases by the World Health Organization. Two tests were used to assess ability.

[12] She testified that in respect of the application of the Vineland Adaptive Behaviour
Scales ( 2nd edition 2005 ) which evaluated everyday adaptive functioning through
information obtained from the complainant and his foster mother. The scales covered
three areas; communication, daily living skills and socialization. On assessment of the
complainant the communication and daily living skills he fell in the range of moderate
intellectual disability (IQ 35 to 49). His score on the socialization domain fell in the range
of mild intellectual disability (IQ 50 to 69 ). His adaptive behavio ur is composite, or
average was likewise in the range of moderate intellectual disability.

[13] In respect of the test related to his individual scale for general scholastic aptitude,
the complainant obtain ed an aptitude score in the range of moderate in tellectual
disability. His test age was determined as six years and 11 months.

[14] In respect of the complainant ’s understanding of sexual matters, the complainant
learned about sex at school, but his understanding of sexual matters was found to be
limited. He could however recall the correct names of the male and female sexual parts .
He had no knowledge of conception, contraception or sexually transmitted illness. When
asked about his opinion of sex between men he replied that it was not normal . Ms.
Hundermark found that the complainant was legally unable to give or to withhold
consent to sexual intercourse in terms of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007).

[15] In respect of his competence as a witness the complainant was found to have
had no knowledge of court proceedings and the role players . H e had a concrete
understanding of the concept of truth, false hood and the making of a promise. He was
unable to provide a simple narrative and but could answer some clarifying questions. He
was able though to demonstrate the allege rape with the help of anatomically correct
dolls. She found that the complainant was nervous and afraid of the court process, but
he nonetheless had the potential to be a competent witness in court under the following
conditions: he should receive court preparation counselling, he should testify out side of
an open court with the assistan ce of an intermediary as he would suffer undue mental
stress if he testified in an open court . She was further of the view that in court the
problems he would experience with attention and concentration and his general lack of
functioning would need to be taken into account.

[16] There was nothing of any significance that arose during the cross-examination of
Ms. Hundermark other than her reiterating the explanation given to her by th e
complainant of the manner in which the incident s were alleged to have taken place and
with use of a knife by the appellants in subduing him . She conceded that the
complainant himself did not have any strong features that characterised his fetal alcohol
syndrome.

[17] The trial was thereafter postponed and upon its resumption the State sought the
leave of the court to formally amend the charge sheet to reflect that the application of
the minimum sentence was applicable on the basis that the rapes occurred by multiple
offenders, a so-called gang rape and that the complainant was mentally disabled . The
court questioned the necessity of such an amendment or whether the legal
representative of the appellants would confirm that the application of the minimum
sentence legislation on the basis of the mental disability and the ir being allegedly
multiple offenders was explained to the appellants in the context of the application of the
minimum sentence legislation. The legal representative for the appellants confirmed that
he had in fact explained that to each of the appellants and they too confirmed that to the
court.

[18] The State sought in terms of Sections 170A of the Criminal Procedure Act for the
complainant to testify via an intermediary on the basis of the evidence of Ms.
Hundermark in that he would be exposed to undue mental stress if he testified in the
presence of the appellants of who he felt extremely intimidated by. There was no
opposition to the application by the defence.

[19] During the course of his testimony both in chief and in cr oss-examination and
while testifying through the use of an intermediary it was noted from the typed record of
the proceedings there w ere repeated problems experienced with the quality of the
sound recording that led to an immense amount of frustration exp erienced not only by
the regional magistrate, the intermediary, the prosecution and also by the defence. The
regional magistrate repeatedly raised her concern about the inadequac ies and the
malfunctioning of the microphones and a recurring disturbing noise in the feedback of
the testimony of the complainant and the relay of the evidence of the intermediary
through the speakers. The regional magistrate even resorted to having the record typed
in order to report the poor state of functioning of the microphones and speakers to the
South African Human Rights Commission. While I am sympathetic to the frustration
experienced by the trial court of the mechanisms of the court equipment, it was, in my
view, a matter that should have been immediately referred to and promptly dealt by the
Court Manager, who had ample opportunity of resolving the problem over the period of
almost three months over which the complainant had to testify. I will revert to this
concern and the consequence of the repeated malfunctioning of the equipment.
Needless to say , having the intermediary and the complainant himself repeat answers
via the malfunctioning sound equipment , no doubt and unnecessarily impacted on the
complainant’s anxiety about testifying in the matter.

[20] The testimony of the complainant is set out no more than briefly and by way of no
more than a background to the incidents itself. He was found by the regional magistrate
to have understood the difference between right and wr ong and the importance of the
truth despite his mental disability. He was formally sworn in. He testified that at the time
of the incident he was seventeen years old and lived at 2[...] J[...] Street in Tulbagh. He
explained that on 17 M ay 2 020, a Saturday evening , he initially stated after 22h00,
thereafter stated after 21h00 thereabout, and later stated that it was about 20h30 that
he walked home from a shop that he described as from the Small Prins shacks in Klein
Begin, Tulbagh. He explained tha t that it was the n where the two appellants initially
attacked him with the first app ellant kicking him from under his feet and as a result of
which he fell to the ground. The second appellant thereupon pulled him across the road
to the side of the shop. The second appellant pulled down his pants whil e he lay on his
stomach. T he first appellant held his hands from the front of him while the second
appellant got on top of him and as he stated, “he made me clever ”. He explained that
the second appellant then inserted his penis into his anus. As already indicated much of
this evidence had to be repeated by the complainant on account of the poor functioning
of the sound equipment used by the intermediary and also on account of the
complainant’s voice not being picked up by the microphone . H e demonstrated to the
court how he was held from the front by the first appellant with the use of his two fists in
front of him. H e explained that when the second appellant was done with him, the first
appellant did the same to him. H e described the first appellant by his nickname
“Tambaai”. Again, after several questions , he had to clarify that Raydon was Tambaai
and Eben (the second appellant) was the other “black” brother. There was aga in
confusion caused with regard to the complainant ’s testimony and Mr. Swanepoel
pointed out and claimed that the intermediary had incorrectly “translated” the questions
to the complainant. The complainant was eventually able to explain that he understood
that “Tambaai” was Raydon (the first appellant) . He explained that the second
appellant’s nickname was that of “Rib”. When asked if he was sure that it was the first
and second appellant who did these things to him h is response was that he was sure
about it. He also explained that he had known both the first and the second appellant.
He claimed, and again after some repetition and confusion, that it was the second
appellant who had a child with a cousin of his. He claimed that he knew the appellants
from where they lived. After the sexual assaults on him , both of the appellants walked
away. He went home and immediately told his foster mother what occurred. She
thereupon phoned the police, and he was thereafter taken to a doctor. When asked if he
was hurt as a result of what was done to him, he claimed that “I was bleeding from the
back by my buttocks ”. The interpreter at this stage stated “it was hurting at the back of
my buttocks” to which the intermediary point ed out that was not what the complainant
had testified. The complainant explained that he bled from between his buttocks . The
complainant was then shown a set of four photographs which were entered into
evidence with the consent of the defence. The photographs depicted the scene at which
the incidents were alleged to have taken place , under a tree near his uncle’s yard from
which an informal shop was run. He was asked a question of clarification by the court as
to what he did in res ponse to the attack on him . He claimed that he was “carrying on”.
When asked what he meant by it, he said that “they must stop”.

[21] The trial was thereafter postponed on account of the court time having run out. It
resumed several weeks later, and the complainant was once again assisted in testifying
through an intermediary but this time by a different social worker as the previous social
worker was unavailable. At the commencement of the complainant’s cross-examination,
he was asked about vari ous people who he was required to describe. There was some
confusion in the manner in which the questions were posed by the defence and in the
answers given by the complainant. It was put to him that people by the names of Ellen
and Taka, and that he, the complainant, had on a previous occasion assaulted the first
appellant. The first appellant therefore laid a charge of assault GBH against him and the
others. T he complain ant readily admitted that he had personally assaulted the fi rst
appellant and that it was correct that the first appellant had laid a charge of assault
against him. He confirmed that incident occurred prior to the sexual assaults for which
both the first and second appellant were charged. It was put to him by the defence that
the charges of rape which he had laid against the appellant was because the first
appellant had laid the charge of assault against him and the others . The complainant
flatly denied it. He was also cross-examined about whether prior to the alleged incidents
he testified about , he was found by the second appellant near the shop at his uncle’s
premises under the tree where he and a Mr. Eltino Baadjies were busy smoking
mandrax. He admitted to having smoked man drax in the company of Mr. B aadjies. He
also explained that when he smoked mandrax “it would tip me over then I fall on the
ground” and that he became confused after smoking ma ndrax. He denied though that
when the incident s took place he was confused as a result of having smoked mandrax
on the night . He also denied that he was confused in his evidence about the incident
and his identification of the appellants as the persons who sexually assaulted him. He
explained that he was able to identify the appellants as one of them who he identified as
the first appellant had spoken to him while he and Eltino smoked mandrax under the
tree. It was disputed by the defence that it was the first appellant who had spoken to
Eltino Baadjies and who had found them under the tree but rather the second appellant.

[22] In the course of his cross examination he was also confronted with the statement
that he had made to the police in which he mentioned that the appellants had a knife
which they used to threaten him with . He had not mentioned that in his evidence in
chief. His response was that he had simply forgotten to do so. I should point out that the
statement he had made to the police, which was eventually entered into evidence was
not co -signed by his foster mother. It also appeared from the record that at that stage of
his testimony the intermediary pointed out to the court a quo that his concentration had
waned, and that he had indicated to her that he had not eaten since breakfast that
morning and that he was hungry. It also appeared that there was confusion in respect of
the questions asked of the complainant and the answers given with regard to who of the
two appellants had found him and Eltin o Baadjies smoking under the t ree. The
complainant maintained that it was the first appellant despite it repeatedly put to him
that it was the appellants version that it was in fact the second appellant who had
spoken to Eltino Baadjies. The matter was again postponed, this time as a result of the
lack of concentration on the part of the complainant and upon its re sumption again
proceeded with the use of an intermediary, this time with the first social worker who had
assisted the court a quo.

[23] Upon resumption of his cross-examination, it was put to the complainant by the
legal representative of the defence that at the last occasion prior to the proceedings
been adjourned, he testified about being at the shop near the tree where he and Eltino
Baadjies smoked and “they spoke to you ”. That was clearly incorrect. The complainant
never claimed that both appellants spoke t o him as he maintained that it was the first
appellant who had spoken to him. During the further course of the cross-examination of
the complainant the proceedings were interrupted by the court having to adjourn to deal
with an attorney concerning a different matter. On resumption there was also a
mechanical interruption and once again repeated requests by the regional magistrate
and Mr. Swanepoel for the complainant to repeat his testimony on account of them not
being able to hear because of the malfunctioning audio equipment.

[24] It was also put to the complainant that at the shop in the yard of his uncle ’s
premises people had walked up and down at the time at which he claimed the incidents
were alleged to have occurred. He flatly denied that there were any people in the vicinity
at the time the incidents occurred. He was again cross-examined about his identification
of the appellants near the sha cks where he claimed the two of them initially attacked
him. He maintained that he was able to have clearly seen them and again described
that it was the second appellant who had kicked him to the ground . He was once again
tasked in cross examination to explain how he was dragged across from the area of the
shacks across the road to where the sexual assaults on him were alleged to have taken
place. He also claimed that while being dragged and accosted by the appellants he
shouted out for help . He was yet again asked to explain what happened under the tree
after they dragged him there and at this point it appeared that the complainant become
emotional and asked to go to the toilet. The proceedings were thereupon adjourned for
a short while. Upon its resumption he was again cross -examined at length about how
the incidents took place under the tree, who of the appellants he claimed held him down
in front and the penetration of his anus by the appellants. He was even asked in cross -
examination by Mr. Swanepoel as to “what is a penis ?” to which he explained that its
“your private part”. He was asked as to what was a penis used for to which he explained
“to go to the toilet ”. He was also asked “what was the use of one’s anus?’’ to which his
response was “to sit on it”. He again explained that when the first appellant inserted his
penis into his anus his pants had been pulled down and so too his underpants to his
legs. He again explained that when the first appellant inserted his penis into his anus,
he was lying flat down on his chest . And so too , he was again and, in my view, wholly
unnecessarily and tediously cross-examined about how the sexual assaults took place
by each of the appellants on him. It was also put to him that Ms. Hundermark explained
that he was not familiar with sex related topics and yet he was able to explain “a lot
about sexual acts and so forth ”. He was asked whether someone had told him what to
say. His response was that no one had told him to do so.

[25] There were various contradictions pointed out in the statement that he made to
the police and in his testimony in particular that no mention had been made of the knife
and that in the statement he ha d said that both appellants had pushed him to the
ground. The complainant explained that “I forget a lot of things ”. He nonetheless
maintained his version with regard to the attack on him by both of the appellants near
the shack area and the sexual assault under the tree s. It appeared from the record that
the complainant began crying in the course of his testimony . He also explained how he
attempted resisting the attack on him under the tree by the appellants and recalled that
while holding him down and sexually assaulting him the appellants were “laughing in my
face”. During further cross -examination, the regional magistrate noted that the
complainant’s concentration had virtually diminished. The proceedings were brought to
a halt and postponed for further cross-examination.

[26] On resumption he again maintained that it was the first appellant who had
confronted him and Eltino Baadjies whil e they were busy smoking mandrax under the
tree. He also maintained that when the first appellant spoke to Mr. Baadjies, he also
addressed him which was denied by the appellants. The version of the appellants was
put to him to which he confusingly responded to. It had to be repeated as a result of the
intervention of the regional magistrate to ensure that the complainant fully understood
what was required of him to respond to . H e disputed the version of the appellant’s
denial of having attacked him and having sexually assaulted him.

[27] The foster mother of the complainant, Ms. Daniels, had indicated to the State that
she did not wish to testify in the presence of the appellants on account of her fear of
them. T he State, however, eventually did not proceed with an application for her
evidence to be given through an in termediary but the court a quo allowed for her
evidence to be heard while the court proceedings was done in-camera. I should indicate
that the parents of the appellants attended the trial, and the State initially sought to
exclude the mother from being present on account of the role she and the appellants
apparently played after the bail application was heard in the Magistrates Court wh en
they unsuccessfully applied for bail. They apparently threw dominoes in the court room
and broke a window.

[28] Ms. Daniels explained that she had brought the com plainant up since he was a
baby. W ith regard to the incident, she explained that the complainant was then
seventeen years old. On the night of the incident, she was home when he arrived . She
asked him why he looked so “bland, why is he looking pale ”. It appeared to her that his
clothing had been pulled to the one side and it looked like he had been pulled about.
She also noticed that there were tears running down his face and that when she looked
at his pants it appeared to be red, stained with blood. He told her that it was merely
mud. She explained that he had on a green long tracksuit pants. She responded to him
that it was blood that was on his pants and that he had marks on him that looked like
“knife stabbings”. She claimed that she immediately went inside the house and phoned
the police. Mr. John Jones, a police officer, answered and informed her that she should
properly examine the complainant and that he would arrange for an ambulance . She
then pulled down the pants of the complainant and observed that the re was “ blood
coming from his anus”. At that stage Ms. Daniels broke down in tears. She claimed that
when she saw the blood she again phoned the p olice. She claimed that all the
complainant had said to h er was that it was Rib and Tambaai and that he was going to
get them. She explained further that the whole of his pants at the back was full of blood
and that it ran down his legs. She had given his pants to the police. She identified in
court the appellants as being Tambaai and Rib respectively. She also explained that her
baby son had a child by a cousin of theirs and that the appellants did not live far from
them. When asked about the impact of the incidents on the complainant she explained
that he had become aggressive and that he had a scarred wound on his anus. S he
explained how hurt she felt by it all and the fact that his dignity had been “taken away
and how people had shouted at him” about the incident. She likewise became emotional
during her testimony. In cross-examination she stated that the complainant did not have
any bleeding problems in his anus prior to t he incident. She al so explained that there
was blood not only on the pants but also on both of his legs. The complainant did not
tell her initially what happened . She was asked whether he did so after wards to which
she explained that he did and said it was both Tambaai and Rib who had pulled him
across the road where they pulled his pants down and that Tambaai first and thereafter
Rib sexually assaulted him. The appellant s version of the ir denial of the sexual assault
on the complainant was put to her. S he also explained what she referred to as “knife
stabbings” on the complainant`s buttocks. It appeared that the marks had been caused
by the manner in which he was dragged by the appellants.

[29] At the resumption of the hearing on the postponed date the State applied for the
court to make an exception to the best evidence rule for the J88 report to be accepted
into evidence as Dr. Mukombe was not available to testify . He was no longer based at
the Ceres Hospital and had relocated to the rural Eastern Cape . The prosecution had
been in contact with him . I nitially, it appeared that he was unable to attend court
because his wife had given birth but had since not been available at all. She claimed
that he had stopped replying to email s sent to him from the State. The State claimed
that it had also been unable to obtain an address for him in order to serve a subpoena
on him. The prosecutor informed the court that she had also sent further e-mails to him
requesting certain information, but he had not been forthcoming, and that the State had
gone as far as to motivate for an airline ticket for him to travel from the Eastern Cape .
She claimed that he had simply not respond ed at all. T he State sought to hand up its
unanswered email correspondence sent to Dr. Mukombe, but the defence had not been
given copies of it prior to the proceedings for them to consider their position. The State
however indicated to the court a quo that it intended calling Dr. Crous in the place of Dr.
Mukombe as she had studied the J88 and she would give an expert opinion on its
content and conclusions. The regional magistrate invited Mr. Swanepoel to consider his
clients position and to advise whe ther they needed more time to do so or whether the
court could provisionally hear the evidence of Dr. Crous. The regional magistrate noted
though that if the appellant`s legal representative was “uncomfortable with it , he would
give him the opportunity to go and study the law and see what he could come up with”.
Mr. Swanepoel thereupon indicated that the evidence of Dr. Crous could provisionally
be entered into evidence. The court did so on th at basis and that argument on the
admissibility of the J88 and that of Dr. Crous would be dealt with later by the defence.

[30] Dr. Crous placed her qualification as a medical doctor and expertise in family
medicine on record. She explained that Dr. Mukombe was stationed as a locum doctor
at Ceres H ospital in 2020 through an agency. She confirmed that she had studied the
J88 completed by Dr. M ukombe. She was requested by the State to read it into the
record and also to express her expert opinion with regard to the findings and
conclusions contained therein.

[31] The examination by Dr. Mukombe of the complainant had taken place on 17 May
2020 at approximately 23h30 at the Ceres Hospital. The details of the complainant were
entered on the document and his gender as male. His date of birth however was not
recorded. Under the heading; General history of the complainant; it was recorded that
he was a “defaulter epileptic drug user ,” his clothing was recorded as normal, and his
general body built also as normal. Part 5 of the J88 dealt with the clinical findings where
Dr Mukombe stated “small bleeding anal lacerations ”. In respect of the complainant ’s
mental health and emotional status, the abbreviation “NAD” was noted which in medical
terms referred to “No Abnormalities Detected”. In respect of clinical evidence of drugs
and alcohol , Dr Mukombe noted; “none”. He concluded under Item 8 “normal clinical
examination” which according to Dr. Crous contradicted what he had stated at point 5 of
having noted “small bleeding anal lacerations.” She explained that the lacerations were
an indication of a blunt force injury. She claimed that the presence of the laceration or
the injury to the per i-anal area could “thus not be a normal finding on examination ”. On
the second page of the J88 he crossed out the whole of part D which dealt with “History
in the case of alleged sexual offence” and part E; “Gynaecological examination.” On the
third page of the J 88 under part F, he recorded that samples were taken for
investigation and recorded the seal number of the evidence collection kit. The
specimens were handed to a Sergeant Hopley. Dr. Mukombe crossed out the part that
dealt with “Conclusions.” Part G dealt with; “Anal examination”, the first item related to
“skin surrounding the orifice”. In respect of item 1 , “hygiene”, Dr. Mukombe recorded
“good,” item 2 ; “pigmentation” he recorded “none” item 3 ; “fissures or cracks” he
recorded “none,” and under “abrasions”, Dr. Mukombe’s handwriting appeared illegible.
Item 5; “scars” he recorded “none” and item 6, “swelling/thickening” he recorded “none”
Under item 7; “redness/erythema” he recorded “none.” Item 8, “bruising/hematoma” he
recorded “none” and he drew a line through item 9 ; “tags.” Tags relates to pieces of
skin. Dr. Crous was of the view that the examination of the skin surrounding the o rifice
contradicted the recordal in item 5 of the J88 where Dr. Mukombe had noted the “small
lacerations.” The State also pointed out that item 4 , “abrasions” was likewise illegible
and should have correlated with item 5 under “general examination” in respect of the
lacerations found.

[32] The following section under the heading “Anal Examination” related to the
“Orifice” where item 10 “tears/fissures” a lso appeared to be illegible, item 11 ,
“swelling/thickening of rim” was recorded as “none,” item 12; “funnelling” was recorded
as “none,” item 13 ; “reflex dilation ” was recorded as “none,” item 14;
“shortening/eversion of anal canal” was recorded as “none,” item 15; “cupping” recorded
as “none” item 16, twitchiness or winking was recorded as “N and a line” item 17, under
“discharge;” “blood” was recorded . Dr Crous explained that cupping referred to an
indent on the inside of the anus. I n respect of item 18; “digital examination,” related to
the presence of hard faeces in rectum, of which none were recorded. Item 19; “laxity”
(pressure on anal orifice) “none” was recorded, item 20; “thickening of anal verge” the
recordal was illegible. Item 21; tone, sphincter grip, “none” was recorded.

[33] In respect of item 21 , where Dr. Mukombe recorded that the s phincter grip was
“none” Dr. Crous was of the view that on performing a digital examination of the rectum
one would in layman's terms examine how tightly the anal canal gr ips around one’s
finger. Dr. Crous was of the view that the recordal of “none” was not an appropriate
answer. Under item 22; “conclusions” Dr. Mukombe recorded “small lacerations ” the
rest of Dr Mukombe`s writing was again illegible. U nder H; “male genital ia” Dr.
Mukombe crossed out the entire subsection. Under “conclusions,” he again recorded
“NAD” Dr. Crous was likewise of the view that the “NAD” recordal did not correlate with
the previous findings as once there were signs of trauma seen it could not simply be
recorded as no abnormalities detected . Dr. Mukombe had signed each of the pages of
the J88 report with his practice number inscribed at the bottom.

[34] On the last page of the J88 were diagrams. The first section of the diagrams was
that of the perineum of both a male and female on which Dr Mukombe noted nothing at
all on the diagram and appended his signature below it. Dr. Crous was again of the view
that this recordal did not correlate with the previous findings of Dr. Mukombe. There was
a second set of diagrams in which he had simply drew a circle in the centre of the
buttocks with a line drawn that stated, “small lacerations”. He again signed the bottom of
the page with his initials.

[35] When asked by the State as to the cause of the trauma noted in the J88 report
her view was th at the injuries noted by Dr. Mukombe were indicative of a blunt force
injury to the peri -anal area. In respect as to how such an injury could have occurred,
she indicated that she was unable to speculate . She was however of th e view that an
object was used to inflict the injury . Such an object could in her view have been either
be an inanimate object or bodily force . She explained that the blunt force trauma was
caused as a result of the object coming into contact with the peri -anal area . When
asked by the regional magistrate, that looking holistically at the J88 report whether there
had in fact been a proper digital examination by Dr Mukombe of the complainant , Dr.
Crous`s response was that she did not wish to speculate but as she read the J88 report
it appeared to be unlikely . In further questions of clarity from the court , with regard to
whether the injuries noted could have been caused a s a result of constipation, Dr.
Crous discounted it. However, Dr. Mukombe had not indicated that the trauma was in
the peri-anal area. As already indicated, with regard to tears and fissures he indicated
that there were none and it therefore appeared to Dr. Crous that there was no physical
trauma on the sphincter itself but t here was a possibility of surrounding trauma. Dr.
Crouse also noted that Dr. Mukombe noted that the re were abrasions on th e skin
surrounding the orifice although his writing was not entirely legible. Dr. Mukombe did
however note in the J 88 report that there was a laceration in the a nal area and that
there had been bleeding.

[36] In cross -examination Dr Crous was asked as to whether the peri-anal area
included the buttocks to which she explained that it did not as it related only to the skin
surrounding the anus. S he indicated that it appeared from the anal e xamination
recorded in items 1 to 21 that nothing a bnormal or no trauma was indicated . She
explained the relationship between points 21 and 13 (reflex dilation) where “none” was
indicated. In Dr. Crous’s view, if the tone was decreased one would have had a reflex
dilation and the cause of the dilation would according to her knowledge be as a result of
trauma or a spinal cord injury . She was also questioned with regard to item 5 of the
general examination where the word ing was not entirely legible. It was put to Dr. Crous
that it could not be assumed that there was an indication of trauma to the anus but
rather to the buttocks . Her response was that she was unable to comment on exactly
what Dr. Mukombe meant.
Dr. Crous also indicated that a doctor would normally make notes in th e hospital file of
the patient. She however had not rea d the file of the complainant. She confirmed that
there were no other injuries recorded in the J88 report, such as sca rring or trauma to
the legs or the back of the complainant. When questioned with regard to the bloodstains
that were found on the pants of the complainant Dr. Crous explained that Dr Mukombe
had recorded in the J88 with regard to the examination of the orifice and item 7
indicated that there was a discharge of blood . She was of the view that blood would
have originated from the orifice itself. She conceded that without the use of
instrumentation it would have been difficult to have determined the wound that caused
the bleeding but that it was possible for an injury that originated inside the anus to have
caused the bleeding to the extent that the person ’s underwear was soiled with blood .
Dr. Crous refused though to speculate on the extent of the bleeding . S he was also
asked whether the injuries indicated that the complainant had been injured /penetrated
more than once. The court clarified the question by indicating that the complainant had
testified that he had been unlawfully penetrated more than once in his anus. Dr. Crous’s
response was that based on her knowledge and experience if somebody ble d from his
anal canal it was a “ serious injury”. She stated though that it would be difficult to
speculate whether penetration occurred more than once.

[37] Upon the conclusion of Dr. Crous’s testimony the regional magistrate inquired
from Mr. Swanepoel whether the evidence could be finally admitted into evidence or
whether he first wished to consult with the appellants and consider the testimony of the
doctor. Mr. Swanepoel`s response was “I am not sure you r worship” . The regional
magistrate indicated that she would make a note of the issue and that it would be dealt
with at the resumption of the proceeding s. The J 88 was marked “provisional” at that
stage and the trial was postponed for further evidence.

[38] At the recommencement of the proceedings the regional magistrate pointed out
that the State had not yet closed its case, and that the court had still to make a final
decision with regard to the admission of the evidence of Dr. Crous and the J88 . Mr.
Swanepoel on behalf of the appellant stated, “I’ve got no objection for the J 88 to be
handed in and form part of the record …”. The State’s responded by asking whether that
included the evidence of Dr. Crous being admitted. Mr. Swanepoel thereupon advised
the court, that it would still have to address the court on its “probative value I will
address the court later”. Mr. Swanepoel nonetheless was of the view that the J88 could
be handed in as “as a final exhibit”.

[39] It was apparent that Mr. S wanepoel on behalf of the appellants admitted the
hearsay evidence in the form of the J88 but reserved the appellant `s right to address
the court on the probative value of the J88 and that of the evidence of Dr. Crous. In that
regard the regional magistrate recorded “ exhibit D” (J88) as entered as final subject to
the address as regards to evidentia ry value and the evidence of course . The State
thereafter closed its case.

[40] The first appellant thereafter testified . H e confirmed that he knew the
complainant as the complainant was the person that had assaulted him prior to the
complainant laying the charges of rape against him and the second appellant in this
matter. He claimed that incident occurred on 9 February 20 20. In respect of the
incidents for which he and the appellant had been charged with, he claimed that he was
at his mother’s house on the day and recalled that it was a Sunday. He claimed that he
was in the company of his girlfriend, Hajunay, and that they were in a relationship at the
time. He claimed th at she has since moved on to another boyfriend . He did not know
where she was located as she no longer resided in Tulbagh. He explained that he and
his girlfriend were at the premises the whole day as they had slept for the better part of
the day and at about 5:00pm commenced watching television until the night. He claimed
that when it got dark the second appellant`s “wife” arrived and said that there were
people looking for him . S he said that the people brandished pangas and knives, and
they claimed that he and the second appellant had “raped someone”. He explained that
his brother was not married but it was his girlfriend. H e claimed that she then asked
where his brother was, and he informed her that he was at the back of the shack in
which he lived . He and his brother th ereafter decided that they would go down to the
police station . H e claimed that on their way to the police station they came across a
police officer a Mr. Adjura Makala and they said to him they had just heard that the
complainant had laid charges of rape against them. Mr. Makala apparently said to them
that the complainant was at the police stati on to open a case, but that he would first be
taken to the hospital by the police. Mr. Makala apparently said to them that they should
go home and that when the police sought them, they would find them at their home. The
version of the complainant was put to him with regard to the incidents to which the first
appellant denied any knowledge . In cross-examination it was put to him that the
complainant could have elected to implicate any person s in the area in which they lived
but had fingered him and his brother. The first appellant responded that the reason was
that “him and his people are plotting against me because of the case that I have opened
against him, and the plot is against myself and my brother ”. H e added that the
complainant had “even come to me with money and wanted me to withdraw the matter
but I refused ”. He was unable though to give any explanation or reason as to why the
complainant would implicate the second appellant in the matter. The first appellant also
claimed that “there are also people that are behind him helping him to do what h e is
doing, these American people”. He claimed in response to a question from the State. He
stated that he was not speculating about it but that it was the ir leader a person by the
name of Elderin who was an American (gangster) that had influenced the complainant
to make up the false claims against him. When pressed by the prosecutor as to why this
was the first time th e version about Elderin was raised his response was that “I am not
going to answer that question”. He claim ed further that in the incident in which he was
assaulted by the complainant it was “when Elderin told him hit him and then he hit me”.
When asked what Elderin had against him he explained that Elderin and the JCY’s were
fighting and that his cousins were JCY’s (members of the J unior Cisco Yakkies gang).”
The first appellant c laimed that that he was a member of the 28 ’s gang and also of the
(HL) Hard Livings gang. The first appellant claimed that the reason why the complainant
had laid a case against him was because he and the second appellant often spoke to
the JC Y’s who were his cousins and because they (the JCY’s) had stabbed the
complainant and the complainant thereafter assaulted him. The first appellant claimed
that the complainant had also laid charges against members of the JC Y and he
thereafter together with Elderin and the mother of Elderin assaulted him. The first
appellant therefore laid the charges of assault against all three of the m. The prosecutor
put it to him that he was literally grasping at straws in his explanation s. The first
appellant maintained though that he had no idea as to why the complainant had laid the
charges of rape against the second appellant and that the second appellant would
himself explain when he testified. The first appellant accepted that the complainant had
been examined by a doctor and that bleeding was found as well as cuts ( the
lacerations) on his body. The first appellant claimed though that he bore no knowledge
as to how the injuries were caused.

[41] The first appellant was cross examined about his version of having been in the
company of Hajunay during the course of the day . The S tate undertook to assist the
defence in subpoenaing her for the defence.

[42] The State put to the first appellant that his evidence was that when they met the
police officer, Mr. Makala, while apparently on their way to the police station, they had
said to him that they were being accused of rape by the complainant. It was pointed out
that in his earlier testimony he had not claimed that the second appellant’s girlfriend had
mentioned the name of the complainant at all. Yet they were able to give his name to
police officer . The first appellant claimed that he did in fact mention the name of the
complainant as relayed to him by the second appellant’s girlfriend but that the
prosecutor may not have heard it as he stammered while speaking . The regional
magistrate thereupon confirmed from her own notes that no mention was made of the
complainant’s name in the report by the second appellant’s girlfriend . T he second
appellant thereupon stated that he had forgotten to say that the name of the
complainant was in fact given by the second appellant’s girlfriend. He also maintained
that it was as a result of his st uttering that it may also not have been heard by the
regional magistrate. While the regional magistrate noted that the first appellant did have
a stutter when he previously testified, the st utter had completely abated in his further
testimony. When being pressed by the State as to why he had not mentioned that the
second appellant’s girlfriend had mentioned the complainant ’s name he claimed that it
was because he did not understand high Afrikaans and later claimed that it was
because he had been in custody for so long and that he had endured much pain and
also as a result of the throat cancer suffered by his father and th at he was responsible
for raising three kids, all of which, caused him to have forgotten to have mentioned that
his girlfriend had informed them that it was the complainant who had made the
allegations against him and the second appellant in his earlier t estimony. The
prosecutor eventually put to him that the reason why he and his brother had accosted
and sexually assaulted the complainant was to exact revenge on the complainant for
having assaulted him. The first appellant disputed that . He also claimed t hat he did not
know the date on which the incident was alleged to have taken place but that his alibi
was that he was with his girlfriend the entire day when the complainant alleged that he
had been raped by him. H e explained that all he could recall was that it was on a
Sunday that his brother’s girlfriend informed him that there were people looking for him
and his brother because of the alleged rape by them of the complainant.

[43] The defence closed the first appellant’s case after his testimony.

[44] The second appellant thereafter testified in his defen ce. He confirmed that he
knew the complainant but only by sight as they were not friends. He claimed that there
were no problems between him and the complainant . On the night of the in cident, he
had gone to what he referred to as the “tuck shop” which was situated on the premises
of the complainant’s uncle. The window through which the public was served at the tuck
shop was closed . He t hereupon saw the complainant and E ltino sitting und er a tree
smoking “drugs”. He confirmed through pointing out on the photographs where he saw
the complainant and Eltino smoking under the tree . He claimed that he asked Eltino if
he could take a puff from the pipe that they were smoking and that he would purchase
half a mandrax for them in return . Eltino ’s res ponse was that he did not smoke
“buttons”. He then said to him that he was merely making a joke and asked where he
could find a shop that was open. Eltino pointed out a shop across the road to which he
proceeded. The shop was also closed, and he claimed that he thereafter walked directly
home. He claimed that upon arriving at home he went through the front d oor to the
backyard where there were shack dwellings. He went to sit at the shack that was
occupied by the children of his sister. He claimed that he waited for his sister’s child’s
boyfriend to come home as the two of them were meant to discuss the roof that he was
to have repaired for them. Upon the boyfriend`s arrival, they discussed holes in the roof
that he would repair. He remained there for a while He then heard people speaking
loudly. His brother , the first appellant , came to the back of the house and told him that
he should listen to what his girlfriend had to say. She told him that there were people
armed with pangas that were looking for them as they claimed the appellants had raped
the complainant. They decided they would walk to the police station whereupon the y
came across Mr. Makala as the first appellant testified. They however did not see any of
the people that were apparently after them. They returned home after Mr. Makala had
told them that the complainant was at the police station. He denied any knowledge of
the rape . He claimed that when he had c ome back from the shop, he found the first
appellant in the front room with his girlfriend watching television. In cross-examination
he confirmed that he knew the complainant merely from sight. He claimed though not to
have had any problems with the complainant . He claimed that in 2019 his friends had
fought with friends of the complainant. He could not give any explanation as to why the
complainant had involved him in allegations of rape as there were no problems between
them. He claimed though that he did agree with the first appellant that it could be a plot
by the complainant against them. In response to questions with regard to what he had
said to Eltino w hen he found him and the complainant under the tree smoking, he
claimed that he had not spoken directly at all to the complainant. He was however
unable to say whether the pipe which the two of them had been smoking may have
belonged to the complainant as opposed to Eltino. Yet he had not asked both of them if
he could share in smoking the pipe. He also claimed that he had no intention of smoking
from the pipe and that it was merely a joke. He also claimed that he was unable to recall
the name of the boyfri end of his sister’s child whom he had spoken to about repairing
the roof. He had known him for some time though. He claimed that the child and the
boyfriend no longer lived there, and they ha d been unable to trace them to come and
testify on his behalf and to confirm his version. He claimed that he did not intend calling
them as alibi witnesses as he was certain of his innocence. He also claimed that he did
not wish to call any other witnesses in support of his defence. He claimed though that
he would want Eltino to be called as a witness in support of his version against that of
the complainant. He claimed that he was unaware that the complainant had a disability
and “a head problem” as it was put to him by the State.

[45] The matter was thereafter postponed to enable the State to assist the defence
with securing the attendance of the witnesses. At the resumption of the proceedings,
Mr. Swanepoel indicate d that he had discussed the ma tter with the mother of the
appellants who was in contact with their family members who were meant to have been
called as witnesses. They indicated to her they had no financial means to attend court .
His clients therefore elected not to call any of the alibi witnesses. The witness, Eltino
Baadjies had also not responded to a subpoena issued against him by the State. The
appellants elected not to pursue his evidence any further despite his failure to respond
to the subpoena and closed their case.

[46] In his address on the merits on conviction Mr. Swanepoel referred, amongst
others, extensively to the evidence of Dr. Crous and that of the recordals made by Dr.
Mukombe in the J88 report. H e criticized Dr Cous for not having read the file notes
made by Dr. Mukombe other than the J88 report. H e pointed to the various
contradictions contained in the J88 report and submitted that the report held very little
evidentiary value. Needless to state, the State for its part contended to the contrary and
asked the court a quo to accept the evidence of Dr. Crous and in particular her
interpretation of the notes and recordals made by Dr Mukombe in the J88 and her
expert opinion in relation thereto.

[47] The regional magistrate in her judgment dealt in detail with the evidence tended
on behalf of the State and that of the appellants. She referred at length to the evidence
of Dr. Crous with regard to the J88. She pointed out that in the light of the “atrocious”
quality of the clinical examination by Dr. Mukombe as reflected in the J88, Dr Crous was
unable to testify as to the direction of the blunt force trauma which had been
administered to the anus of the complainant. Nonetheless, Dr. Crous had testified that
blood was present in the anal area which she herself described as indicative of a
serious injury. The regional magistrate also set out at length what was common cause
in the evidence of the State and that of the defence. It bears no repetition. She pointed
to the fact that she had to consider the evidence of the complainant with both caution
and care. She noted that he had become confused at times during the course of his
testimony. She also noted that the matter had, as a result of the complainant
experiencing a lack of concentration on a number of occasions , to be postponed and
that his testimony was in fact heard on no less than four occasions over a period of
three months. The regional magistrate was satisfied that the complainant was not only a
competent witness but that he had made a positive impression on her. She also noted
that he made several concessions which was indicative that the complainant did not
seek to unnecessarily prejudice any of the appellants . T he complainant readily
conceded that he had assaulted the first appellant prior to the charges of rape been laid
against them. He also conceded that he was a drug abuser which led him to become
confused at times . The regional magistrate was of the view that the complainant was
able to explain the discrepancies in his version, in particular that which was contained in
his statement to the police that he had been threatened with a knife . He claimed that he
had forgotten the presence of the knife . I should indicate that he did menti on the use of
the knife in his interview with Dr. Hundermark when she obtained details of the incident
from him.

[48] The regional magistrate was of the view that the discrepancies in the testimony
of the complainant, was in part, indicative of the extent of his confusion. She was of the
view though that when the evidence of the complainant was considered in its totality,
the contradictions were not material and did not de tract from his overall version of the
physical attack on him by the appellants and the sexual assaults. She pointed out that
the exercise of caution of the evidence as required by law did not detract f rom the
exercise of common sense in the evaluation of the compla inant’s testimony. She also
referred to the fact that in the light of the assessment of Ms. Hundermark of the
complainant. His evidence had also to be treated as that of a child . The regional
magistrate noted that despite Ms . Daniels having been distressed and trauma tised
during the course of her testimony , her evidence supported the first report made by the
complainant to her. Importantly, Ms. Daniels gave a description of the clothing of the
complainant and the blood she observed in his anal area. The court a quo found her
evidence to be both credible and trustworthy. In her assessment of the evidence of Dr.
Marisa Crous the regional magistrate referred to the relevant case law when dealing
with expert testimony. She was satisfied that Dr. Crous provided independent
assistance to the court by way of her objective opinion in relation to matters that were in
her area of expertise . H aving considered her testimony she was of the view that no
doubt could be cast on her expertise or independence. The court a quo was also of the
view that the clinical findings recorded in the J88 correlated with the observations by
Ms. Daniels about the blood-stained clothing and bleeding from his anus. The regional
magistrate noted that Dr. Crous had also readily conceded to several aspects in the J88
report on which she was unable to express an interpretation or offer any opinion
because of the poor quality of the report. She thereupon carefully considered the
credibility and version of each of the appellants and noted the contradictions in their
evidence which were visibly apparent from the record of the proceedings . She pointed
to what she regarded as the sheer coincidence of the injuries which were suffered by
the complainant on the very night that he claimed to have been accosted and sexually
assaulted by the two appellants, all of which were confirmed in the medical examination
and in the observations by Ms. Daniels. She dismissed the contention by the appellants
that it was no more than a plot against them by the complai nant and that he had been
influenced by others to make false claims against the two of them . She found that both
appellants had impressed her as dishonest and rejected their versions as not
reasonably possibly true. She found that the State had proved its case beyond
reasonable doubt.

[49] I have already indicated that the assessment of both the credibility and reliability
of the complainant `s testimony and the quality of his evidence which appeared at
various parts of the record to be confused and at times inconsistent had to be assessed
in the context of the diagnosis of him by Ms. Hundermark . Her findings and evidence
was that the complainant `s functioning was assessed at the range of a moderate
intellectual disability. Ms. Hundermark assessed his functioning as that of a child of six
years and 11 months . I t is t hrough that pris m, inter alia , that his evidence had to be
assessed and the apparent confusion that was elicited not only in chief but also during a
lengthy and in the excruciating cross -examination by the defence . In my view , the
examination of the complainant would have contributed in no small measure to the
secondary trauma he was exposed to . As already indicated, the evidence of the
complainant also had to be considered within the context of him testifying through an
intermediary and where the sound equipment did function properly and that on
numerous occasions, he was required to repeat his answers at the instance o f the
regional magistrate , the defence and the State. Needless to say, that would have
compounded his anxiety and contributed to the at times confused answers that he gave.
In considering the evidence of the complainant one need only step back, carefully look
at the complainant`s version in context and mindful of his limited functioning, determine
whether on the conspectus of all the evidence including that of Ms. Daniels, the medical
evidence of Dr. Crous and at times the incoherent recordals in the J88. In my view, his
testimony could not be rejected . He maintained a highly probable version and the
circumstances in which the initial assault took place on him in the area of the shacks of
Klein Begin, being dragged across the road and there sexually assaulted by each of the
appellants. Despite the repetitive cross-examination by the defence legal representative
he maintained his version o n these crucial aspects of his testimony . That version of his
remained unassailable , despite the confusion in the narratives that su rrounded the
incidents.

[50] Importantly, his version was supported by Ms. Daniels who made the observation
of his rugged appearance and the blood-stained clothes and when physically examining
him observed that there was still blood emanating from his anus. S he explained that
when she saw it, she again called the police who promised to se nd an ambulance to
attend to the complainant.

[51] It is apparent that Dr. Mukombe had paid scant regard to the complainant in his
examination of him. He had not even taken down his age and had not even bothered to
fill in large parts of the J88 including item D , “History in the case of alleged sexual
offence”. His handwriting was moreover illegible and seriously compromised the efficacy
of his report. On the face of it, his recordals, demonstrated that he had simply failed to
have ap preciated the seriousness with which he was required to have conducted the
examination of the complainant and to have filled in each of the items on the form. His
recordals as already indicated in the evidence of Dr . Crous were contradictory, in
particular with regard to his clinical finding of “small bleeding anal lacerations” where he
simply concluded the examination as “normal.” Dr. Crous had systematically dealt with
each of the items in the J88 and pointed out inconsistencies in the observations and
recordals made by Dr. Mukombe. He had not even bothered to depict on the d iagram of
the perineum where the small lacerations were and did so only on the second diagram
with reference to the buttocks . The regional magistrate, in my view, was correct in her
acceptance of the expert testimony delivered by Dr. Crous and her interpretation of the
“atrociously” filled in J88 report of Dr. Mukombe. She correctly noted that Dr. Crous had
correctly conceded when required and desisted from any speculation in the light of the
poor quality of the J88 report. More importantly was her finding that the bleeding
emanated from the anus that was indicative of a “serious” condition. I have no hesitation
in accepting the expert testimony of Dr. Crous.

[52] I should point out that th e evidence of the J88 report was, in my view , not
properly considered by the court a quo as hearsay evidence which it was both in fact
and in law . Neither the State nor the regional magistrate and most of all , the defence
failed to deal with it as hearsay evidence that had to be dealt with in terms of the
prescripts of Section 3 of the Law of Evidence Amendment Act 45 of 19 88. The State
merely sought to have the J88 admitted as an exception to the best evidence rule.

[53] In considering the J88 report, I am mindful of the approach adopted by Cameron
JA S v Ndhlovu and Others 2002 (6) SA 305 (SCA) in the evaluation of hearsay
evidence and its admissibility in terms of the factors set out in subsection 3(1)(c) of the
Act.

[54] The J88 report was with the consent of the defence enter ed into evidence
provisionally subject to them considering their position. At the resumption of the hearing
Mr. Swanepoel on behalf of the appellant’s admitted the J88 into evidence effectively
accepting the hearsay evidence and only reserving the appellant’s right to deal with the
probative value of the report and the cogency of the expert testimony of Dr. Crous. I n
my view, the regional magistrate ought to have been alive to the fact that she was in
fact dealing with hearsay evidence and that it had to be dealt with in terms of Section 3
of the Law of Evidence Amendment Act 45 of 19 88. Fortunately, the defence admitted
the hearsay evidence and obviated the need for the regional magistrate to have made a
detailed finding as to its admissibility prior to the State closing its case. In my view , it
would in any event , have met the stringent requi rements for its admissibility in terms of
the Act.

[55] In the consideration of the evidence of the complain ant I am particularly mindful
of the oft quoted dicta in S v Dhlumayo 1948 (2) SA 677 (A) that the court a quo was
steeped in the atmosphere of the trial and was thereof best suited to determine the
demeanour and the credibility of the evidence of the witnesses before it. Neither of the
appellants impressed as credible witnesses. That was correctly pointed out by the State
during the course of their testimony, particularly the first appellant. He was quite happy
to chop and change his testimony when ever it suited him . Whil e the State is not
required in law to demonstrate and to prove any motive on the part of the complainant
to falsely implicate the appellants it was clear beyond any doubt that they had sought
revenge against the complainant for him having previously assaulted the first appellant.
Notwithstanding that, criminal charges had also been laid by the first appellant against
the complainant. What the appellants had opportunistically appeared to do was that one
of them had observed the complainant smoking with Eltino Baadjies earlier that evening
and they later came upon him amongst the shacks in Klein Begin. T hey floored him ,
dragged him across the road and the re each of them in turn sexually assaulted him by
penetrating him in his anus with their penises. They did so with the utter abuse of their
power in having found the complainant in a vulnerable condition, alone in the dark in the
shack area. Their conduct was predatory as the complainant was literally at their mercy,
having been threatened with a knife and unable to provide any real resistance against
the two of them.

[56] Their versions about having only been alerted to the incidents by the second
appellant’s girlfriend who apparently heard that there were people with knives and
pangas out to get them because of the ir alleged rape of the complainant was in my
view, hopelessly lacked any credibility. As pointed out in the cross examination of the
first appellant he was not informed by the second appellant’s girlfriend as to who they
were alleged to have raped but yet they were able to inform the police officer who they
encountered on their way to th e police station that it was the complainant who had laid
the charge s against them. The appellant s carried no onus to prove their alibi. They,
however, had simply made little or no attempt to find their alibis and it was only at the
behest of the State that any attempt was made by their legal representative to inquire
about the whereabouts of their alibis. Moreover, it was not even clear that the appellants
or their legal represent ative had consulted with Mr. Elt ino Baadjies with regard to the
version that he would have proffered to the court. It was therefore of little surprise that
no effort was made by the defence to secure his attendance upon his failure to heed the
subpoena.

[57] I am equally satisfied that the regional magistrate had correctly rejected the
version of the appellants as not being reasonably possibly true. I am more than satisfied
that the State has proved beyond reasonable doubt the rape by each of the appellants
of the complainant.

[58] In respect of sentence, the appellants faced the prospect of life imprisonment
unless they were able to demonstrate substantial and compelling reasons for the
regional magistrate to have deviated therefrom. The State proved previous convictions
against each of the appellants , which they admitted . The first appellant had been
convicted of housebreaking in 2009 and sentenced to a period of 24 months
imprisonment. In 2011 he was convicted of the unlawful possession of drugs . The first
appellant was again convicted of the unlawful possession of drugs in 2018 and fined. In
2013 he was convicted of theft and in terms of sections 276 (1)(i) of the CPA, was
sentenced to 24 months imprisonment . In 2018 he was likewise convicted of theft and
sentenced to three years imprisonment of which 18 months were suspended . In May
2019 he was convicted of having absconded, having been on correctional supervision
and was sentenced to six months imprisonment. The second appellant was convicted of
housebreaking in 2001, and the sentence was postponed for five years. In March 2001
he was convicted of two counts of housebreaking for which on the first count he was
sentenced to four months wholly suspended for five years and on the second count the
sentence was postponed for a period of five years. In November 2002 he was convicted
of robbery and sentenced to 24 months imprisonment . In N ovember 200 2 he was
convicted of robbery and sentenced to nine months imprisonment . In March 2007 he
was convicted of the possession of items of which he was unable to give an explanation
and sentenced to 18 months imprisonment, wholly suspended for four years . In April
2008 he was convicted for the possession of drugs and sentenced to a fine.

[59] I should at this stage indicate that for the purposes of sentence the regional
magistrate generously regarded each of the appellants as first offenders other th an to
record their history of previous convictions.

[60] The appellants tended the evidence of their mother Ms. Rachel Skippers in
mitigation. She testified that she was sixty four years of age and her husband who had
been diagnosed with throat cancer was sixty two years of age . Both, received a state
pension. She has had to leave her temporary employment as a result of her husband’s
condition. S he explained that she supported and looked after two of the second
appellant’s minor children. She also had to look after the female child of her deceased
daughter. All the children resided with her. The second appellant’s children were ten
years and fourteen years respectively. She claimed that the ir schoolwork had suffered
as a result of the incarceration of the second appellant. Her husband was in and out of
hospital and she really did not know what to do as she was literally unable to sleep at
night. S he claimed that the first appellant had worked with her in Saron as a grape
packer. The second appellant worked on a farm in the Tulbagh area where they also
harvested grapes. She has lost that financial assistance from the appellants to support
her family and the children. They also had debt which they had to service. S he
maintained that the appellants were not guilty because she claimed the y were “at home
on that night”.

[61] When asked by the prosecutor as to what her request was of the court in respect
of the sentencing of her children , Ms. Skippers maintained that the appellants were at
home on the evening of the incident together with the first appellants girlfriend and “with
me the whole day and th at evening we were sitting , singing chorus es”. The regional
magistrate appropriately pointed out that she did not wish to hear evidence from her
with regard to her version as to where the appellants were at the time of the incident s.
In cross-examination she further explained that the first appellant had completed school
in Grade 6. She claimed the reason was that he felt he did not want to continue with his
schooling. He was probably at the age of 15 years at that stage. She claimed that the
first appellant wish ed to go and work in order to assist her. I n respect of the second
appellant who was the youngest of her children she explained that he attended school
in Paarl and continued up to Grade 7. He did not wish to attend school any further and
she was unable to force him to do so. She explained that the appellants had lived with
her, together with the young children as there was no other accommodation for them. I t
was pointed out to her that both appellants claimed that they were members of gangs.
She denied any knowledge thereof . She was even unable to explain the presence of a
tattoo on the forehead of the second appellant with the inscription “RIP.” She claimed
not to know the reason why he had done so. She was also asked about the incident in
court after the bail application where the appellants , in her presence, had thrown
dominoes around, in which the window of the court was broken . S he claimed not to
have known why they did it. She also explained that she received a grant in respect of
each of the second appellant’s children of R460 per month each . The mother of the
second appellant’s children lived in Durbanville with her own family. The granddaughter
born of her deceased daughter lived with them and she also received a state grant. She
testified that she spoke from a broken heart as a m other whose children were facing
lengthy sentences.

[62] The defence thereafter addressed the court ex -parte on sentence and with
reference to the oft quoted cases relating to sentence and the application of the
prescribed minimum sentence Act. Mr. Swanepoel pointed out that the first appellant
was 30 years old , he was not in any relationship as after his incarceration his girlfriend
broke up with him and had found a new lover. The appellants had for the past twenty
two years stayed in the four-roomed brick house of his family in Tulbagh. The first
appellant worked on a farm in De Hoek where he earned between R1500 to R2000 per
fourth night. H e claimed that th e first appellant contributed towards the ir household
expenses. H e also claimed that the instructions from the appellants was that from a
young age they were exposed to the use of drugs . In respect of the second appellant,
he was the father of two children, and he had worked as a general worker on farms and
received an income of R1800 per fourth night.

[63] The defence contended that the appellants had from a young age been exposed
to drug and alcohol abuse and violence in the community of Tulbagh. T hey also
belonged to gangs in the area . Mr. Swanepoel contended that although rape was a
serious offence the incident relating to the complainant was not one of the worst
incidents of rape. He contended that from the evidence in the J88 report there were no
life-threatening injuries sustained by the complainant during the incident . He contended
that the court a quo should not simply bow to the dictates and demands of the
community with regard to the seriousness of the offence . He addressed the court with
regard to the dicta in the of t quoted decision of S v Malgas 2001 (1) SACR 469 SCA
with regard to the determination of an appropriate sentence and whether there were any
substantial and compelling circumstances. He contended that there were, given what he
considered, that the complainant had not sustain ed any life-threatening injuries and
more so that both appellants had spent over twenty months in custody awaiting trial. He
also addressed the court at length with regard to other cases in which accused persons
were sentenced to life imprisonment, but were on appeal, reduced to lengthy periods of
imprisonment.

[64] The State did not obtain an impact assessment report in respect of the
complainant for the purpose of sentence . Nonetheless, the report of Ms. Hundermark
was indicative of the impact of the incident on the complainant and so too was the
evidence of the complainant ’s foster mother during her testimony at the trial . The State
subsequently provided what was referred to as an impact statement which the police
had taken of the complainant. In the statement, when asked about how the incident had
impacted on him, he claimed that “his dignity had been taken away ” from him. He gets
very cross and heart sore and he was also now more aggressive. He indicated that he
was scared to walk around alone at night . He indicated that there were no injuries that
remained as a result of the incid ent. He stated that he had left his employment as a
result of his aggressive behaviour to wards others. H e also claimed that he found it
difficult to trust other people and to get along with others . He claimed that the faces of
the persons who committed t he acts of rape act against him recur red and that at times,
he felt like taking the law into his own hands.

[65] The S tate pointed out there was nothing in the evidence on behalf of the
appellants that indicated that they were the products of any dysfunctionality in their
upbringing by their parents . I t appeared though, that the ir up bringing was permissive
and that their parents enabled them and had no control over them in leaving school,
which they simp ly chose to do so . T he State, likewise, referred to the legion of
authorities with regard to the minimum sentence legislation and that the court could not
deviate therefrom f or flimsy or fanciful reasons . T he State also contended that the
emphasis by the defence that there were no remaining injuries suffered by the
complainant was no more than a myth in as much as it simply ignored the serious
trauma caused as a result of the sexual assault on the complainant . The State likewise
lamented the manner in which Dr. Mukombe dealt with the examination of the
complainant and the lack of a proper recordal of his injuries . The State, however,
pointed to the evidence of Dr. Crous who stated t hat on the evidence, the injuri es
sustained by the complainant w ere serious. The State also pointed out that the time
spent incarcerated awaiting trial by the appellants trial w ere not relevant to the
consideration of a life sentence. The State also contended in line with case law that life
sentences did not detract from the potential for the rehabilitation of incarcerated
persons.

[66] The regional magistrate in her judgment on sentence set out the personal
circumstances of each of the appellants , referred to the various provisions of the
minimum sentence legislation and that the appellants were required to establish
substantial and compelling circumstances in order for the court to deviate therefrom.
The court was satisfied that the State had established the basis for the imposition of the
minimum sentence legislation by the fact that each of the appellants had perpetrated
the act of rape against the complainant . The court, however, gave the appellants the
benefit of the doubt with regard to the mental and intellectual ability of the complainant .
The cour t a quo also regarded each of them as first offenders for the purposes of
sentencing. The court not ed that although it may not be held against any of the
appellants no remorse w as displayed b y them, neither in the testimony of the ir mother
Ms. S kippers who lamented more her own personal predicament as a result of the
conviction of her sons . The court was also mindful of the decisions in respect of the
minimum sentence legislation, especially that of Malgas. The court noted that the State
provided proof of the age of the complainant during the course of sentence that he had
not yet attained the age of 18 years old at the time of the incident . The court a quo was
unable to find any substantial and compelling circumstances to have deviated from the
application of the minimum sentence legislation.

[67] In their challenge on the sentence imposed by the Magistrate on appeal the
appellants contended that the magistrate had erred in having not found any substantial
and compelling circumstances . They contended that the appeal court was therefore at
liberty to impose an appropriate and fair sentence. On appeal the appellants did no
more than reiterate their personal circumstances which were already on record and
offered little else in supporting their contention that substantial and compelling
circumstances had been established before the court a quo. The State for its part o n
appeal dealt extensively with the provi sions of the minimum sentence legislation that
was applicable to the appellants . The State emphasised that the importance of the
Malgas judgment referred to earl ier was that the substantial and compelling
circumstances envisaged need not be exceptional but “ must pr ovide truly convincing
reasons or weighty justification for imposing less than life imprisonment or the y must
induce the conclusion that the prescribed sentence would in the particular case be
unjust and disproportionate to the crime, the offender and the legitimate needs of
society”. The State also referred to the oft quoted dicta in S v Matyityi 2011 (1) SACR
40 (SCA) in which it was emphasised that the courts are obliged to impose the minimum
sentences ordained by the legislature unless there were truly convincing reasons for
departing therefrom.

[68] The State pointed out that the court a quo considered all of the evidence led with
regard to the personal circumstances of the appellants which was taken into account
and the seriousness of the offence , the socio -economic circumstances of the
appellants, and that of the complainant which by all accounts appeared to have been far
worse than that of the appellants . More importantly, the appellants had abused the
complainant’s vulnerability. The State, with reference to similar authorities emphasized
the fact that the complainant was for all intents and purposes a child at the time of the
incident, suffered severe disabilities as indicated in the testimony of Ms. Hundermark
and was particularly vulnerable to the brutal and predatory conduct of the appellants.
The State contended that the court a quo had considered all the relevant facts and
circumstances of the matter and correctly found that there were indeed no substantial
and compelling circumstances to have deviated from the prescribed sentence of life
imprisonment. I agree. It was apparent from the record that the appellants , despite the
testimony of their mother , did not establish any substant ial and compelling
circumstances for the trial court to have deviated from the minimum sentence. It need
not be repeated here. All of the personal circumstances have already and extensively
been placed on record. The circumstances under which the offence took place and what
was clearly the reason for having sexually assaulted the complainant in such a brutal
manner was no more than their revenge against him. The appellants displayed not an
iota of sympathy towards the complainant in the manner in which they dealt with him.
They simply abused their power over him and sought to humiliate him in the most
gruesome and brutal of way s by the sexual assault on him. The complainant remains
scarred for life.

[69] I indicated earlier that I will in this judgment deal with what I consider may be the
apparent lack of professional conduct on the part of Dr. Mukombe. The manner in which
he filled in the J88 and his examination of the complainant at the hospital left much to
be desired. He appeared to have seriously compromised the State’s case, and had it
not been for the credible and expert testimony of Dr. Crous , the State would have been
left with little more than an unintelligible J88 filled in by Dr Mukombe . He moreover
failed and/or refused to attend court to testify. No plausible reason ha d been provided
by him to the prosecutor as to why he was not able to do so. The State indicated that it
had even offered to provide a n airplane ticket for him to attend the trial. In my view, the
concerns raised about his conduct is of such a serious nature that the State is directed
by this court to refer the concerns to the Health Professionals Council of South Africa for
a thorough investigation. The court therefore directs that a copy of the J88 together with
this judgment and the record be provided to the Health Professionals Council for their
consideration and investigation of Dr. Mukombe’s conduct. In fairness to Dr . Mukombe,
he should be provided with th e fullest opportunity of responding to the concerns raised
by this court and that of the regional magistrate.

[70] It was also not apparent to this court that the complainant received any trauma
counselling as a result of the rapes. Ms. Galloway who appeared on behalf of the State
on appeal, very graciously and willingly undertook to investigate whether he was in fact
receiving any counselling and to ensure th at processes were put in place for him to
receive the necessary support. She has since the h earing of the appeal provided the
court with a report that the complainant was presently receiving counselling and will
continue to do so for as long as it is needed by him. The court is indebted to her for the
assistance provided and the alacrity at which she attended to the court’s directive. The
court notes that , very often, especially complainants in r ural areas, literally fall t hrough
the cracks and do not receive the necessary trauma counselling post incident and more
so even after the conclusion of the trial and conviction of the perpetrators.

I must add, that the court manager at the Tulbagh Court is directed to ensure that the
mechanical equipment functions properly, that is used when evidence is d ealt with
through an intermediary.

[71] In the result I propose to dismiss the appeal and to uphold the convictions of both
appellants and confirm the sentences of life imprisonment imposed on each of them.

It is ordered that:

1. The appeal against the co nvictions of rape by each of the appellants is
dismissed. The convictions of rape of each of them is confirmed.

2. The sentences of life imprisonment imposed on each of them by the court a quo
is confirmed.

________________
V C SALDANHA
JUDGE OF THE HIGH COURT

I agree.

________________
M ADAMS
ACTING JUDGE OF THE HIGH COURT