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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
Case No: AR296/2019
In the matter between:
JOE ELIAS MBOMBIE APPELLANT
AND
THE STATE RESPONDENT
ORDER
1. The appeal against the conviction is upheld
2. The conviction and sentence is set aside.
JUDGMENT Delivered:
Mngadi J - (Jikela J: Concurring)
On appeal from: Pinetown Regional Court (Mrs Asmal, sitting as the court of first
instance):
[1] The appellant appeals as of automatic right against conviction and sentence.
[2] The Appellant stood charged before the regional magistrate with one Count of
rape of a ten (10) year old, complainant, it being alleged that on or about 28
November 2008, he did unlawfully and intentionally commit an act of sexual
penetration with the complainant by inserting his penis into her vagina without her
consent. The appellant who was legally represented throughout the trial pleaded not
guilty to the charge. The regional magistrate after hearing evidence convicted the
appellant as charged. Having found no substantial and compelling circumstances for
a court to impose a lesser sentence, sentenced the appellant to the prescribed
minimum sentence of life imprisonment.
[3] The complainant [N..M..] testified as follows. On n 28 November 2008 when
her mother went to work, she remained in her home with other children. One M[...]
did not stay with her. She had come from rural area to assist her with cleaning. Her
father and M[...] 's father were brothers. The appellant was renting a room in the
same place in which they rented. When she and M[...] returned from the toilet, the
appellant was in his room. The appellant called M[...] to do some work for him. M[...]
was sixteen (16) years old. M[...] did the work for the appellant by making the bed
and washing dishes. The complainant remained outside. She wanted to enter the
room, but they did not want her to enter.
[4] The complainant testified that the appellant then went outside. M[...] started
pulling the appellant by his penis. This happened outside in the yard. She went to
her mothers' room, and they followed her. The appellant was wearing a blue shirt
and black pants. The appellant's zip was opened and M[...] pushed her hand into the
appellant's underwear and pulled his penis. She got inside the house. She started
washing dishes. The appellant and M[...] followed her into the room. The appellant
said he was aroused. M[...] told the appellant to sit on the chair and stretched his
arms. M[...] helped her and put her on the appellant's lap facing him. The appellant
kept moving like pushing something. She was wearing long brown pants and a t -
shirt. She demonstrated how the appellant was sitting on the chair by indicating a
person sitting on a chair with arms and legs spread outwards. M[...] lifted her and
she demonstrated sitting on the appellant's lap facing him. M[...] sat on Thembas'
small chair. All the other people were at work.
[5] The complainant testified that the appellant was holding her having his arms
around her. She was trying to move away from him. M[...] noticed that the appellant
did not have power to hold her tight and she came and pressed her on her
shoulders. When she tried to scream, she blocked her mouth. She (the complainant)
and the appellant were not dressed.
[6] Asked how they ended up with no clothes, she said the appellant told M[...] he
wanted to undress her. The appellant then lifted her arms and M[...] pulled her T -shirt
off. The appellant then got up and lifted her legs and M[...] pulled her pants off. This
happened after she had been lifted and placed on the appellant. The appellant as he
was sitting on the chair did not have any clothes on him. He undressed after he had
undressed her. The appellant kept on moving shaking his body moving forward.
M[...] went out to peep outside. Asked before he started moving what did he do, she
said he inserted his penis in her. Asked where in her, she said in her vagina. She
said she was crying it was painful. She did not bleed. Asked how long the appellant
kept moving, she said it was 10 hours, which was a short while. Asked when M[...]
saw that uncle T[...] was coming what was the appellant doing she said she was
shaking. Asked when M[...] told him that uncle T[...] was coming what did he do, she
said he left, he wore his pants and left, he was wearing a vest under his shirt, black
which was on the floor. Uncle T[...] went into his room. As he was opening the door
she told him. Her mother arrived after she had told uncle T[...]. At that time M[...] was
outside. Her mother did not ask M[...] , or the appellant anything. She also did not ask
uncle T[...].. M[...] was then at her house which is near her house.
[7] The complainant under cross -examination testified as follows. Asked what she
meant or understand by being aroused, she said she knew nothing. She said when
she saw M[...] pulling the appellant's penis, they were outside, and they were sitting.
She said after she told her mother, she asked them why they did something so bad.
She said the appellant had been consuming liquor, and he was drunk. She said the
appellant was in a relationship with M[...] . Before that the appellant tried to grab her
mother. Her mother asked M[...] why they did something so bad and M[...] was with
the appellant. They both did not say anything.
[8] P[...] M[...] testified as follows. She was the mother of the complainant. She
knew the appellant for about two years. On 28 November 2008 when she returned
from work, she received a report to take the complainant to the doctor. From home
she went to the clinic. She did not speak to the appellant who had fled and M[...] ran
away. M[...] returned after few weeks. She did not notice any change in the
complainant. She met T[...] on her return. He asked her whether she had taken the
child to the clinic, and she said yes.
[9] T[...] M[...] testified as follows. He knew the appellant. He remembers the
events of 28 November 2008 around 11:30 in the morning. He was from a neighbour
to his room. When he was about to reach his room, he heard a child crying. He then
saw M[...] standing by the door on the complainant's house. When he was near the
toilet, he met the complainant. He asked her why she was crying, the complainant
told him that M[...] threw her on the bed and took the appellant and put him on top of
her. The appellant as he was on top of her, he moved up and down. Whilst the
complainant was telling him her mother arrived. He told her to come and hear what
the complainant was saying. The complainant said M[...] alerted the appellant that
here is uncle T[...] coming. He was the appellant going to his room from the
complainant's house. He did not see anything. When M[...] was standing at the door,
the door was open. He could not recall what the appellant was wearing. The
complainant said when the appellant was on top of her, he had taken off his pants
whilst he moved.
[10] Maxwell Ngcobo testified that he was a medical doctor with fourteen (14)
years' experience. On 28 November 2008, he examined the complainant who
reported that she was raped on the same day 28 November 2008 during the day by
a known person. She could not specify time. He found that she had bruises on both
left and right labia majora, as well as labial minora which findings are suggestive of
vaginal penetration. He completed a medical report J88 which he identified, and it
was handed in as an exhibit.
[11] The medical report (J88) on the sketch section shows no notations. It is
written next labia majora: bruised bilaterally as well as next to labia minora. Under
hymen it records a configurative of annular and shows nothing next to swelling,
bumps, clefts, fresh tears, synechiae and bruising.
[12] The regional magistrate on judgement stated the prosecutor advised the court
that M[...] was a reluctant witness and had been charged. The learned regional
magistrate commenced her evaluation and analysis of the evidence by stating that, it
was common cause that the complainant was raped on 28 November 2008, and that
what is in issue is that the appellant raped her as she alleges. It is not on record on
what basis the learned regional magistrate based her decision that it was common
cause that the complainant was raped on 28 November 2008. From the start the
appellant denied that he raped the complainant. There was no admission by the
defence at any stage of the trial that on the day in question the complainant was
raped. The learned regional magistrate having taken as common cause what needed
to be proved caused her to misdirect herself on the issues in dispute. The
misdirection resulted in the court regarding part of the state case as common cause
which impacted on the court in judging the rest of the state case.
[13] The learned regional magistrate stated that the complainant appeared to be
an intelligent girl and testified in a straightforward convincing manner, she appeared
to have a clear recollection of the events relating to the charge. She answered
questions in a respectful, childlike manner without guile or hesitation. There was not
a hint of deviousness or any indication that she was manipulating the facts.
[14] The regional magistrate sought to explain the difference between how the
complainant testified she was raped and the report the complainant made to T[...] as
caused by the fact that T[...] had been drinking that morning. However, It was never
put to T[...] that he was mistaken regarding what complainant told him regarding how
she was raped. Therefore, his evidence stands, and it is direct conflict to that of the
complainant. The fact that the alleged incident had just happened and T[...] was keen
to know what happened the difference is inexplicable. M[...] is related to complainant
and there was no evidence that M[...] a 16-year-old was in a love relationship with
the appellant who was 32 years old. The state decided not to charge M[...] with the
appellant although the evidence of the complainant makes her a co -perpertrator.
There was no explanation why the state planned to call M[...] as a state witness
instead of charging her as a co -accused.
[15] The appellant and M[...] had the appellant's room at their disposal. This does
not explain the claim that during the day outdoors M[...] would be playing with the
appellant's penis until he got aroused. If T[...] came whilst the appellant was raping
the complainant, he should have noticed the state of dress of both the complainant
and the appellant. The complainant in her evidence did not say that she cried, cries
that could have been heard by T[...].
[16] The complainants' mother did not testify that the report made to her differed
from the report made to T[...]. She did not testify that the complainant was dressed in
a manner that suggested that something had happened. She said when she arrived
the appellant was not there which contradicted the evidence of the T[...] and the
complainant. She did not say she asked the appellant and M[...] how could they do
something so bad like that that to the complainant.
[17] The doctor was not asked to explain what is it that he described as bruise,
what size was it, where was it in labias and how old was it. He was also not asked
why the hymen was intact.
[18] The learned regional magistrate in my view misdirected herself in taking it as
a common cause that the complainant was raped on 28 November 2008. This led to
her failing to exercise proper caution to the approach to the evidence of the
complainant. In particular, she overlooked the material discrepancies in the evidence
of the complainant and the unsatisfactory features. The hearing of an appeal against
findings of fact is guided by the principle that in the absence of demonstrable and
material misdirection by the trial court, its findings of fact are presumed to be correct
and will only be disregarded if the recorded evidence shows them to be clearly
wrong. See S v Hadebe and Others 1998 (1) SACR 422(SCA) p426b. The conviction
of the appellant, whether he had sexual intercourse with the complainant, and if so,
whether it was without the consent of the complainant, is founded on the evidence of
the complainant. It was the evidence of a single witness and a child. The evidence of
the complainant as evidence of a child is required to be approached with great
caution.
See R v Manda 1951 (3) SA 158 (A) at 162H. The danger inherent in relying upon
the uncorroborated evidence of a child must not be underrated. The imaginativeness
and suggestibility of children are only two of a number of elements that require their
evidence to be scrutinised with care, amounting perhaps to suspicion. The trial court
must fully appreciate the danger inherent in the acceptance of such evidence, and
where there is a reason to suppose that such appreciation was absent, a court of
appeal may hold that the conviction should not be sustained. See Manda at 163E.
The allowance given to evidence of young children, in my view, is that the child
would not experience the incident like an adult and should not be expected to react
to incidents like an adult.
[19] There was no other evidence that corroborated the evidence of the
complainant. Despite the doctor on his examination observed what appeared to him
to be bruises somewhere on the labias, the medical evidence viewed holistically was
neutral on the issue of whether sexual intercourse took place. In my view, the
discrepancies in the evidence were not, with respected, accorded due consideration
by the regional magistrate which amounts to a failure to approach the evidence with
the required caution.
[20] The defence has raised the issue that an interpreter that interpreted for the
appellant during part of the cross -examination had not been sworn in as an
interpreter and that his competence was not proved. The record of the proceedings
show that a Mr Marungulu interpreted for the appellant from part of the cross -
examination of the appellant. The state arranged for his services and sourced him
from its database of foreign language interpreters. He interpreted for the appellant
from that stage until his cross -examination was competed which was about 15 pages
of typed evidence as well as when judgment was delivered. During the delivery of
the judgment the regional magistrate realised when Mr. Marungulu commenced to
interpret he was not sworn in as an interpreter. He then swore in as an interpreter
and he continued to interpret. The record show that there was effective
understanding between Mr Marungulu and the appellant. There is no substance in
my view that competence of Mr Marungulu was in doubt.
[21] The appellant was sworn in when he gave his evidence. He was sworn in
when he commenced giving evidence through the interpreter who spoke the
language of his preference at that stage. The cross -examination was the
continuation of giving of that evidence. Mr Marungulu was in the service of the state
as a casual interpreter which establishes that his services as an interpreter in the
particular language were frequently used. Whenever carrying out that service, he
would be sworn to interpret honestly and correctly to the best of his ability. Ideally,
the person interpreting is sworn in before he commenced to interpret. But the
swearing in of Mr Marungulu by the regional magistrate cured the defect if any. It had
the effect that in those proceedings he appreciated that he had to interpret truthfully
and to the best of his ability and he had done so, and he would continue to do so.
[22] The material discrepancies in the evidence of the complainant weakened the
reliability and credibility of the evidence of the complainant. It results in the evidence
by the state falling short of proving the guilty of the appellant beyond reasonable
doubt. The conviction of the appellant falls to be set aside.
[23] I make the following order:
1. The appeal against the conviction is upheld.
2. The conviction and sentence is set aside.
Mngadi J
I agree
Jikela J