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[1990] ZASCA 30
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S v Lekoloane (35/89) [1990] ZASCA 30 (29 March 1990)
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Certain personal/private details of parties or witnesses have
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Case No. 35/89 E du P
IN THE SUPREME COURT OF SOUTH
AFRIKA
(APPELLATE DIVISION)
In the matter between:
ISAAC LEKOLOANE
Appellant
and
THE STATE
Respondent
Coram
: E M GROSSKOPF JA,
NICHOLAS et NIENABER AJJA.
Heard:
Delivered:
19 March 1990
29
March 1990.
2
JUDGMENT
NICHOLAS AJA:
The appellant, a 30-year old man,
was charged in the Regional Court in Johannesburg with raping a
13-year old girl named D.H.. He
was convicted and sentenced to
imprisonment for 6 years. An appeal to the Witwatersrand Local
Division was unsuccessful. Leave
having been granted on a petition to
the Chief Justice, he now appeals to this court against the
conviction and sentence.
At his trial
the appellant (to whom
I
shall
refer as "the accused") was represented by counsel. He
pleaded
not guilty, but admitted that on
the day in question he had sexual intercourse with D.: he said that
this was with her consent.
He admitted that she was 13 years old, but
said that she had told him that she was 17.
The scene of the events which gave
rise to the charge was the room of D.'s mother, A.H., in the
servant's quarters at the latter's
place of employment in
3
Lower Houghton Johannesburg. A.'s
husband (D.'s father or stepfather - it was not clear which) also
occupied the room. The time
was the evening of 5 August 1987. Present
in the room were D., A., and the accused, who was a friend of A.'s
and was a frequent
visitor.
In summary the
evidence of D. was this: A. left the room to go to her employer's
kitchen, leaving D. and the accused in the room.
D. was sitting on a
chair,reading a book, and the accused was
a
lso
sitting in
a chair. The accused then went
to the door and bolted it.
Approaching D., he caught hold of
her by the neck and squeezed it. She tried to scream and he put his
hand over her mouth. She said
that she was a very sensitive gïrl
and when she screams she usually faints. She did faint. She did not
know what happened
thereafter, because when she became conscious
again she was in hospital. She was bleeding from her private parts,
and was taken
to a doctor and was given treatment and told to go and
report at the police station.
4
She had never had intercourse
before and she did not give the accused permission to have
intercourse with her.
A.H. said that
while she was in her employer's kitchen she heard screaming three
times: she could not identify the person responsible
for the first
and second screams but the third scream she recognised as D.'s. She
went to her room, but could not get into it.
She gained access by
breaking a window above the door
and
climbing through it. Inside she found the accused putting on his
shoes; on the floor were D.'s panties and red blood; D. was
on the
bed, covered half in a blanket
and
unconscious. There was blood on her upper legs and
she was bleeding profusely from her private parts. She asked the
accused what
he had done to the child and he replied that A. had
little respect for him. The accused was dressed in a windbreaker and
jeans,
and trousers which were splattered with blood and the zip of
which was open. She went outside with D. and obtained a lift to the
hospital where she left
5
D.. Her husband arrived only when
she was in the street thumbïng a lift.
Dr Gillian Keast is a medical
doctor. On 6 August 1984 she examined D. who had with her a pair of
green panties which were stained
with blood. D. told her that she had
spent the previous night in the Hillbrow Hospital; she had had no
previous sex experience;
and she had not begun menstruation. On
examination the doctor found that there were no bruises, abrasions or
wounds on her body;
that the vestibule (the entrance to her vagina)
was red and tender; the hymen showed old tears (which did not
necessarily mean
that she had previously had intercourse); the vagina
accepted one finger; the perineum showed a 1,5 cm ragged laceration
which
extended into the vestibule; and the examination was very
painful to D.. Her remarks were "Signs of recent sexual
interference".
Under
cross-examination Dr Keast said
that obviously a lot of force would have to be applied to get this
sort of laceration,
6
which was unlikely to have
occurred "with normal consenting intercourse". it was
possible, though unlikely, that this
was the second time D. had had
intercourse.
In his evidence
the accused said that he first visited the premises concerned in
January 1984 when A. Hlalele started selling liquor
there. Every
night he used to go and have his supper there, and his washing was
also done there. He first saw D. at the premises
in February - she
stayed there from then on. He and D. were lovers, from February
"until up to date." He slept with
her once only before 5
August 1984. On the evening of that day,
he
said -
"...D.'s
mother left for the main house. D.'s father was not in the room so
I
said to D., look, let us have intercourse
for about 5 minutes and she agreed. After we had intercourse, your
worship,
I
sat on
a chair and then D.'s step-father knocked at the door.
I
opened the door and he asked what we were
doing and
I
did
not say anything. He then lifted D.'s dress and saw . that she did
not have her pantie on. He then went out to tell D.'s mother.
Then
Dolly's mother came to the room, scolded me and said
I
had raped
7
D...."
In finding the accused guilty,
the magistrate said that he bore in mind the cautionary rules
relating to the evidence of the complainant
in a sexual matter, to
the evidence of a very young child, and to the evidence of a single
witness. Viewing the matter in the light
of the probabilities, he had
no doubt whatsoever "that the evidence of D. and her mother has
to be accepted as being true
beyond reasonable doubt and that the
evidence of the accused has to be rejected as being false beyond
reasonable doubt."
It was argued by appellant's
counsel that the magistrate only paid lip-service to the cautionary
rules and that he did not subject
D.'s evidence to the close critical
analysis which it required.
There are, it is plain, features
in D.'s evidence and that of her mother which render that evidence
subject to criticism. Some of
them may be mentioned.
D.'s proclivity to faint when she
screams is
8
certainly unusual, and it is
unfortunate that nobody thought to ask Dr Keast whether such a
tendency is known to medical science.
Her mother said that "this
was my first time to see her unconscious", but she did find her
unconscious when she came
into the room.
Then there is
the matter of D.'s screams. D. said that she tried to scream, but
that this was aborted by the accused placing his
hand over her mouth.
Her mother said that she had heard three screams separated by
intervals
of 20 minutes and it was only the
third that she definitely identified as emanating from D.. This
formed a basis for a defence argument
that D.'s evidence that the
accused attacked her shortly after her mother went to the kitchen,
could not be reconciled with this
evidence. That is true but it does
not reflect on D.'s credibility, because on the accused's evidence
there was no room for any
screams, and on the accused's own story
there was no great delay after A.'s departure before they had
intercourse.
9
The accused
said that it was the father who first entered the room. A. said that
she was the first to enter; her husband was not
there at that stage.
It
was ground for criticism of the State
case that the father was not called as a witness. At the same time,
there is one circumstance
in the favour of A.'s version. She said
that when she entered the room, she found the accused putting on his
shoes. The accused
said in his evidence that "before having
intercourse
I
removed
only my shoes."
D. said that
in the hospital, "My tummy was aching and
blue ... in colour, discoloured and
I
was
bleeding from my private parts." Dr Keast said D. had no
bruises.
D.'s evidence
as to her scholastic activities appeared to be inconsistent. She said
that when she came back to Johannesburg from
Bophutatswana in May
"I
was staying with my grandmother in Hillbrow
and attending school." A little later she said,
"I
was attending school and staying in Soweto
sometimes and coming by train to town
10
to see my mother."
She said again "I am a
correspondence student with Damelin College."
The fact that there are such
criticisms is not in itself sufficient to carry the appellant to
success in the appeal. The.issue is
a narrow one: is it a reasonable
possibility on the evidence as a whole that D., contrary to her
denial, may have agreed to have
intercourse with the appellant? To
that narrow question none of the criticisms of D.'s evidence are
directly relevant. They have
a bearing only to be extent that they
may reflect on her general credibility as a witness. In a case such
as this, where the only
issue is consent, the accused's account of
the circumstances may be of prime importance. This does not mean that
there is any onus
on the accused to prove consent. The onus is on the
State throughout. But where the accused gives an account which cannot
reasonably
possibly be true, that may be sufficient, taken together
with the complainant's
11
denial, to negative consent. Cf.
R v. Bhardu
1945 AD 813
at 822-3.
Fundamental to the accused's
account is that he and D. had a long-standing love affair; otherwise
it would strain credulity beyond
breaking point to suggest that a
13-year old schoolgirl would consent to intercourse for 5 minutes in
her mother's room when her
mother (and according to the accused her
father) was a short distance away and might return at any moment. It
was put to D. in
cross-examination that the accused
met her in February 1984, when he "formed a relationship"
with her, which persisted
until August; that this was not the first
time that he had sexual intercourse with her- he first slept with her
in May; that they
were boyfriend and girlfriend over the whole of the
period (D.'s evidence was that she went back home to the Mefikeng
district
where she stayed between February and May, and that when she
returned to Johannesburg she stayed with her grandmother in Hillbrow
and visited and stayed with her
12
mother only occasionally. But
that is by the way.) "We were lovers," he said, "as
from February up until date."
This improbable
relationship between a man of 30
("I
loved her very much," he said, "but
I
had other
girlfriends") and a school-girl of 13 was, on the accused's
account of it, a hollow affair. They could have seen
one another only
under the eyes of D.'s parents: he did not suggest that they had any
extra-mural contact. There was apparently
no opportunity for a
relationship to burgeon and blossom. Until they had intercourse the
only intimacy between them was that "she
also did my washing."
(When
this was put to D., she indignantly
repudiated it, seemingly with justice: "...that is totally
untrue.
I
did not
do that.
I
attend
school, your worship, and
I
cannot
leave my school to do washing for a friend of my mother's...")
The accused
said that before 5 August 1984 he did not get a chance to sleep with
D. -
"I
only
slept with her once and on the second occasion (i.e. 5 August 1984)
we were
13
disturbed." His evidence
given under cross-examination on the date of the previous intercourse
was confused. It had been put
to D. by defence counsel that the
accused first slept with her in May. She denied it.
He said now:
"It was on
19 August, on Saturday night ...
I
cannot
remember which month it was .. A month before my arrest [this was on
6 August] .. 4 months before my arrest ... It was 4
months on the day
of my arrest since the day of my arrest since that occasion your
worship."
The doctor's evidence was that it
was unlikely that the laceration which occurred on 5 August would
have occurred if D. had had
intercourse before that. The accused's
accounts of post-coital events were inconsistent and contradictory.
It was put to D. in
cross-examination that -
"(the accused) says your
step-father came into the room and found you naked under a blanket
and him haif undressed."
In his evidence-in-chief he said
that after they had had
14
intercourse, he sat on a chair and
that D.'s step-father knocked on the door which the accused opened.
The father "lifted D.'s
dress and saw that she had not her
pantie on." He said that when the mother got into the room, D.
was on the bed, she had
a shirt on, and she was covered with
a blanket. He said that when they
had intercourse, D. took off her slacks and pantie and kept the shirt
on the whole time. As for
himself he only removed his shoes and
opened the fly of his trousers. He could give no explanation why, if
that was to be his
modus operandi
, D. should have removed her
slacks and panties. When pressed on the point, he was evasive. He
said variously:
" .. it was alread late at
night and we were just
going to have intercourse quickly
while her parents
were not
present and
I
was
to leave ...
Your worship, with us blacks ...
the mother and
father are not
supposed to know that
I
and
D.
have an affair and they are not
told...
I
thought
D.'s step-father was going to stop us
I
have
no other reply."
The most telling point against the
accused's story
15
of intercourse with consent, and
which he could not explain away, was D.'s injury. Its infliction must
have caused excruciating
pain if she was conscious. Dr Keast said
that it was the sort of laceration you get in childbirth. There
resulted a profuse flow
of blood. Yet it was something that
the accused did not touch on until
he was cross-examined. Even at that stage he said that the father
lifted D.'s dress and saw that
she did not have her panties on - he
did not mention blood. Asked by the prosecutor to account for D.'s
injuries, he said:
"(T)his
happened when D. was about to menstruate ... It was not my first time
to have intercourse with her.
I
know nothing about a laceration which she
sustained ...
I
did
not use any force."
It was put to him that he did use
force and that is why that laceration was there. His reply was
curious and rambling:
"Your worship, but she could
have been injured if it was rape, she could have received injuries
and bruises and maybe a knife
would have been used if it was rape."
It was also submitted that the
magistrate went
16
beyond
acceptable limits in questioning the accused and that he inhibited
proper cross-examination of State witnesses.
I
do not think that this submission is
well-founded. It is true that there appear from the record signs of
irritation on the part
of the magistrate with defence counsel and
with the accused while the latter was giving evidence, but he did not
in my opinion
exceed the bounds of propriety.
Regarding the evidence as a
whole, and considering the cumulative effect of the points mentioned
above, the accused's story of intercourse
with consent is false
beyond a reasonable doubt. That being so, the onus resting on the
State was duly discharged, and the accused
was properly convicted.
The appellant
also appeals against the sentence. It was argued that the magistrate
over-emphasized the interests of the community
and that the sentence
was excessive and created a sense of shock. It is true that the
sentence was a heavy one, but
I
do
not think it was unduly
17
so. In the circumstances in which
it was committed the crime called for severity. The accused raped a
13-year old girl under her
mother's roof, and thereby abused the
privileges of a guest and the trust of a friend. It was argued that
apparently D. suffered
no permanent damages, and that on the
following day she appeared normal to the doctor. That may be so, but
it does not mitigate
the seriousness of an offence to argue in effect
that it might have been worse. The appeal is dismissed.
H C NICHOLAS
E M GROSSKOPF JA
NIENABER
AJA Concur