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[1999] ZASCA 77
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S v Mdletye (246/98) [1999] ZASCA 77; 1999 (2) SACR 548 (SCA) (29 September 1999)
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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 246/98
In the matter between:
ANDILE MDLETYE
Appellant
and
THE STATE
Respondent
CORAM
: STREICHER JA, MELUNSKY AND MPATI AJJA
HEARD
: 9 SEPTEMBER 1999
DELIVERED
: 29 SEPTEMBER 1999
Criminal appeal - alleged incest
JUDGMENT
MELUNSKY AJA
MELUNSKY AJA
:
[1] Despite his plea of not guilty the appellant was
convicted in the Umtata regional court of committing incest with his
daughter
in contravention of s 99 of the Transkeian Penal Code, 9 of
1983, during the period 1993 to 1996. He was sentenced to eight
years
imprisonment, two years of which were conditionally suspended.
His appeal to the Supreme Court of Transkei (Miller and Madlanga
JJ)
was unsuccessful but the court
a quo
granted him leave to
appeal to this Court against both conviction and sentence.
[2] The appellant is a schoolteacher. At the relevant
time he lived in Umtata. His daughter, the complainant, was born on
[date]
1979. She grew up under the care of her maternal
grandmother, Mrs N.M., in an area of Transkei known as Sâ¦.
Towards the beginning
of 1993 the complainant went to live with the
appellant in Umtata, where she attended school. She stayed with him
until February
1996.
[3] The essence of the complainant's allegations
against the appellant were that a few months after she came to live
with him,
the appellant asked her to rub his back, that he used to
fondle her body, including her genitalia and that he later started
the
practice of having sexual intercourse with her, an activity that
occurred regularly, perhaps three or four times a week. In January
1994 she ascertained that she was pregnant. The appellant arranged
for her to undergo an abortion which was carried out at his
home.
Thereafter the appellant continued to have sexual relations with her
until she eventually left him. As I understand the
complainant's
evidence, she was shocked and upset by the appellant's sexual
demands. Although she did not resist, she was never
a completely
willing participant.
[4] According to the complainant's evidence, the
appellant's attitude towards her was one of possessiveness. On the
one hand
he bought her expensive gifts and on the other he resented
her associations or liaisons with young men. He assaulted her from
time to time, sometimes severely, particularly when, as she put it,
she had a boyfriend. She recounted that on one occasion,
after he
had noticed an inscription on her palm, he struck her with an iron
bar on her head, resulting in an open wound. The
appellant
threatened to commit suicide or to kill the complainant if she
disclosed his sexual activities with her. Their relationship
continued in this way until she returned home on 6 February 1996
after she had been out with her boyfriend. The appellant did
not
approve. He took her into the veld where he assaulted her. The
complainant then left home and went to stay with her aunt,
Ms M.M.,
in Soweto.
[5] The appellant denied that he had sexual intercourse
or any other physical relationship with the complainant. He also
denied
any knowledge of the alleged abortion. He admitted that he
used to "clap her and (that he) used a cane to thrash her".
He called this "moderate chastisement" which, he
indicated, he was entitled to administer because the complainant
made love to "different and several men" while she lived
with him.
[6] The question for decision, of course, is whether on
the evidence as a whole the state has established the appellant's
guilt
beyond reasonable doubt. A convenient starting point in this
regard is a consideration of the trial court's reasons for judgment.
The magistrate made no specific findings in relation to credibility
or demeanour, nor did he record that he regarded the complainant
as
a satisfactory witness or the appellant as unreliable. The reasons
which he furnished for convicting the appellant, moreover,
are not
very convincing. He held, in effect, that the appellant had had
"every opportunity" to commit incest with
the complainant
if he had wanted to do so. He also appeared to have been impressed
with the evidence of a social worker (Ms
Mgilane) and a clinical
psychologist (Ms Mabusela) both of whom, in the magistrate's words,
regarded the complainant as "a
typical child who had been the
subject of child abuse". In addition the magistrate pointed
out that the complainant had
no reason to make false allegations
against her father, particularly allegations as serious as those
which she had made.
[7] Counsel for the appellant invited us to hold that
the complainant was an untruthful and unreliable witness and that
the appellant,
on the contrary, gave satisfactory evidence and, at
least, that his version could reasonably possibly be true. It was
also submitted
on the appellant's behalf that the magistrate had
misdirected himself in various respects and that this Court should
reassess
the evidence in the light of counsel's submissions.
[8] The attack on the complainant's credibility was not
without justification. Two illustrations will suffice. She
initially
stated in her evidence that although she had had sexual
intercourse with a person in Qumbu in 1992, the appellant was the
only
person with whom she had sexual relations from 1993 until 1996.
It later emerged from her own evidence that she had sexual
intercourse
with a young teacher on several occasions during the
period September 1995 to February 1996; that she had liaisons with
other
young men; and that she had sexual intercourse "with
other men because (she) wanted to console (herself)". She
added
that there was an age gap between her and the appellant and
she needed her peers who could understand her.
[9] It is important to emphasise that it is the
appellant - and not the complainant - who is on trial for his sexual
activities
and that the complainant's sexual relationships are
relevant for two reasons only: firstly, because she was clearly
untruthful
in this regard and secondly, because there is the
possibility that her pregnancy and the subsequent abortion might
have followed
on sexual intercourse with someone other than the
appellant.
[10] There are other unsatisfactory aspects of the
complainant's evidence: at some stage while staying with the
appellant she
told a certain Mr Pongwana that she had had sexual
relations with his son, A.. Subsequently she told the father of
Pakamile
Pongwana (who might have been Andile's brother) that she
had had sexual relations with P.. Furthermore the complainant
alleged
in March 1994 that she had been raped by P. during February
1993. As a result she was examined by a medical practitioner who,
not surprisingly, found that there was no indication of a sexual
assault. The alleged rape was also reported to the police.
She
testified that she had falsely implicated the young men because her
father, the appellant, had put pressure on her to do
so. It is,
however, not at all clear what the appellant stood to gain by
compelling his daughter to make false allegations against
A. or P.
and no evidence was led in this respect. The appellant's
explanation, it may be added, was that shortly after the
complainant's arrival in Umtata, he found her in a compromising
situation with A. and after he had questioned her, she admitted
having had sexual relations with the young man. He then took her to
Andile's parents to complain about their son's conduct.
The
appellant also admitted that he took the complainant to a doctor in
1994 after she had claimed that she had been raped by
P.. The
allegation of rape was reported to the police but no trial ensued
as, to use the appellant's expression, "the matter
was
finalised by members of (P.'s) family". The appellant denied
that he had put any pressure on the complainant to induce
her to
implicate either A. or P..
[11] The appellant's counsel placed reliance on the
evidence of Ms Babsy Ndimande, a school teacher, who stayed with the
appellant
and the complainant from some time in 1993 until February
1995. Initially she shared a bed with the complainant. In June
1994
the appellant bought a bed for the complainant who then moved
to a separate room where she slept alone. Ms Ndimande testified
that the appellant was a strict disciplinarian and that he hit the
complainant, especially if she was late in arriving home.
She had
no knowledge of any sexual intimacy between the appellant and the
complainant but it is clear from her evidence that
sexual relations
between them could have occurred before she came home from school or
while she was away during school holidays
or over weekends. She
knew nothing about the complainant's pregnancy or abortion. After
Ms Ndimande left the appellant's home,
an aunt of the complainant,
L., came to stay. L. did not give evidence and it is not clear for
how long she lived in the appellant's
house. According to the
complainant, however, the appellant continued to have sexual
relations with her after L. had moved in.
[12] This is a convenient stage to consider the
evidence of the two expert witnesses called by the State. Ms
Mgilane, a qualified
and experienced social worker, is no stranger
to investigations relating to child abuse. She is trained to
observe and assess
complainants in child abuse cases. Ms Mgilane
pointed to symptoms of sexual abuse in the case of the complainant,
i.e. the complainant's
apparent lack of concentration, which
resulted in a deterioration of her schoolwork, and the nightmares
from which she suffered.
She indicated that, in her view, the
complainant was manipulated by the appellant to such an extent that
it was not surprising
that she kept his activities to herself for
three years. She pointed out that the complainant's decision to run
away from home
was a common occurrence in the case of victims of
child abuse.
[13] Ms Mabusela holds a master's degree in clinical
psychology. She had worked with cases of child abuse for a few
years before
she interviewed the complainant. The complainant
presented with a variety of complaints, all consistent with her
version of
what had occurred between her and the appellant - tension
headaches, poor sleeping, poor appetite, poor concentration at
school
and forgetfulness.
[14] The other witnesses, both of whom were called by
the State, were Mrs N.M. (the complainant's grandmother) and her
daughter,
Ms M.M. (the complainant's aunt). Mrs M., who was
employed as a nurse in Qumbu, told the trial court that she took the
complainant
to the appellant in 1993 at the suggestion of the
appellant's father so that the appellant could see to the further
education
of the child. The complainant's mother, who had not
married the appellant, lived some distance away at Tafalofefe and,
as far
as I can judge, did not devote much time or attention to her
daughter. The responsibility for bringing up the child thus fell
on
Mrs M.. According to her, the complainant had been a well-behaved
girl while she lived with her. Apparently Mrs Mlambo did
not know
about the complainant's sexual experiences in 1992 as she testified
that the complainant gave her "no problems
concerning boys".
She denied that it was the complainant's misbehaviour that had
resulted in her being placed in the appellant's
care and control at
the beginning of 1993. It may be observed that the appellant gave
evidence to the effect that the complainant
had told him some two or
three years before 1993 that she wanted to attend school in Umtata
and that she arrived at his house
in Umtata without any prior
warning in January 1993. She then informed the appellant, he said,
that she had been brought by
her grandmother but that she had come
to stay with him in fulfilment of her own wish to be with him in
Umtata. It is of some
significance that the appellant's version of
this occurrence was not put to Mrs M. or to the complainant. What
is more it was
the appellant's contention, as expressed by his
attorney at the commencement of the trial and repeated during the
cross-examination
of Mrs M., that it was the complainant's
misbehaviour that had led her grandmother to place her in the
appellant's custody.
[15] The complainant's aunt, Ms M.M., testified that
the complainant visited her during December 1995. The complainant
had a
head injury and weals on her buttocks and legs. She told her
aunt that the appellant had inflicted the injuries. She also
experienced
nightmares and complained of headaches. The appellant,
it would seem, telephoned the complainant every day. Ms M. felt
that
the relationship between father and daughter was very unusual
and she raised the question of sexual contact between the two of
them. The complainant did not, at that stage, admit to a sexual
relationship between her and the appellant. It was only on
9
February 1996, when she returned to Johannesburg after finally
leaving the appellant, that she told her aunt about the sexual
relationship. This resulted in Ms M. contacting her mother, Mrs
N.M., who, too, went to Johannesburg. The complainant then
repeated
her story to her grandmother.
[16] The only other witness whose evidence was before
the trial court was the appellant. His version, as I have
mentioned, amounts
to a complete denial of any sexual contact with
his daughter. Save to the extent mentioned earlier, his evidence
was not in
itself unsatisfactory in the sense that it did not
contain material contradictions or inconsistencies. Nor did he, on
the face
of it, appear to be evasive or blatantly devious.
[17] Prior to the decision in
S v Jackson
1998
(1) SACR 470
(SCA), it had long been accepted that criminal cases of
a sexual nature fell into a special category. It was said that
there
was an "inherent danger" in relying upon the
unconfirmed testimony of a complainant in a sexual case. This
resulted
in the courts adopting a cautionary rule of practice. The
rule required -
the recognition of the "inherent danger"; and
the existence of some safeguard that reduced the risk of a wrong
conviction, such as corroboration of the complainant in a
respect
implicating the accused, or the accused's failure to give evidence
or his obvious untruthfulness.
(See
S v Snyman
1968 (2) SA 582
(A) at 585C-H.)
In
S vJackson
it was pointed out at 476e-f that the application of the cautionary
rule to sexual assault cases was based on irrational and
out-dated
perceptions. Although the evidence in a particular case might call
for a cautionary approach, this, it was emphasised
in the judgment,
was not a general rule: the state was simply obliged to prove the
accused's guilt beyond reasonable doubt.
The factors which
motivated this Court to dispense with the cautionary rule in sexual
assault cases apply, in my view, with
equal force to all cases in
which an act of a sexual nature is an element. The reasons given by
Olivier JA at 474f-477d in
S v Jackson
therefore require no elaboration or qualification in relation to the
crime of incest and I proceed to consider the evidence without
the
restraints imposed by the cautionary rule.
[18] This is a worrying and vexing case. It is
unlikely, but possible, that a daughter would falsely admit to the
commission
of sexual acts with her father. It is also unlikely that
she would lie about having had an abortion at the tender age of
fourteen.
Admissions of this nature would cast a grave slur on a
child in the eyes of her community as much as they would stigmatise
the
father. Why, it may be asked, would the complainant have
implicated her father unless her version was true. However, the
fact
that the complainant made serious allegations against her
father is obviously not decisive. It is, in the circumstances of
this
case, only one of the factors that have to be taken into
account.
[19] On a proper consideration of the evidence one
cannot fail to be impressed with the comprehensive detail of the
complainant's
account. Her portrayal of the appellant as a
possessive, domineering and jealous father has the distinct ring of
truth but in
itself is insufficient to establish the appellant's
guilt. There is no doubt that he inflicted severe beatings - which
went
far beyond the bounds of "moderate chastisement" - on
her. The beatings do not redound to the appellant's credit and
lead
me to doubt that he was a caring and loving father who was concerned
only with his daughter's well-being.
[20] The evidence of Ms Mgilane and, perhaps more
significantly, that of Ms Mabusela provide some support for the
complainant's
version. Counsel did not address any meaningful
argument to this Court on the admissibility of the witnesses'
opinions to the
effect that the complainant had been sexually
abused. However I will assume, in favour of the state, that the
conclusions drawn
by the witnesses are admissible in evidence. It
nevertheless remains the function of the Court to decide upon the
weight to
be given to their views for we are not inexorably bound by
what witnesses have said or the opinions which they have expressed.
In weighing up their evidence it may be accepted that the
complainant's symptoms, including nightmares, headaches and lack of
concentration, were genuine and not simulated. Significantly enough
similar symptoms had also been observed by the complainant's
aunt in
December of the previous year. I have no difficulty in accepting,
therefore, that the complainant was a traumatised
young person. The
question is whether the symptoms of which she complained were due to
the appellant's sexual intimacy with
her. It seems to be undisputed
that the appellant was not a sympathetic father: he beat the
complainant severely, he placed
restrictions on her and he monitored
her movements closely. Those factors alone might have played a role
in her decision to
leave home. And the fact that she left the
appellant without his consent, coupled with his harsh behaviour,
might have resulted
in the symptoms from which the complainant
suffered. In my view the trial magistrate should have approached
the evidence of
the social worker and the psychologist with more
care and circumspection than he did. The complainant's symptoms
were obviously
consistent with her allegations of sexual abuse, but
other possible reasons for those symptoms were not excluded by the
evidence
and this fact should have been recognised and taken into
account by the trial court.
[21] There is another unsatisfactory aspect of the
magistrate's reasons. He held that the appellant arranged for his
daughter
to leave Mrs Ndimande's room for "an inexplicable
reason". He concluded, therefore, that the appellant must have
made
this arrangement so that he could have easier access to the
complainant. In fact Mrs Ndimande and the complainant shared not
only a room, but also a bed, for at least a year. It was in June
1994 that the appellant bought a bed for his daughter. This
enabled
her to move to her own room. The magistrate's finding that the
appellant bought a bed for the complainant so that he
could have
easier access to her is purely speculative. There was simply no
evidence on this point. It is possible that the
appellant was
unable to afford to buy a bed earlier. The fact is that the
appellant permitted his daughter and Mrs Ndimande
to share a bed for
over a year.
[22] Moreover, the magistrate failed to have due regard
to Ms Ndimande's presence in the house during 1993 and 1994. The
fact
that she was staying in the house does not mean that the
appellant could not have had sexual intercourse with the complainant
while Ms Ndimande was out or away from Umtata. She might have been
away when the complainant allegedly underwent an abortion.
Ms
Ndimande testified, however, that she would have known about a
sexual relationship between the appellant and his daughter.
She
noticed nothing untoward in their relationship and her only
complaint about the appellant was that he was too strict a
disciplinarian. Neither the state nor the appellant called the
complainant's aunt, L., who also stayed in the appellant's house.
From the complainant's evidence it would appear that L. might have
provided corroboration for her version. There is no suggestion
that
L. was not available to give evidence and no explanation has been
furnished for not calling her.
[23] It is to be regretted that the magistrate made no
considered findings on the quality of the witnesses, particularly on
the
credibility of the complainant and the appellant. In his
reasons for the conviction, hardly a word was said about the
appellant's
evidence. Moreover, he did not appear to apply his mind
properly, if at all, to the highly unsatisfactory aspects of the
complainant's
evidence to which I have referred. The result is that
this Court is called upon to reach a decision in a serious criminal
case
without the assistance of detailed reasoning which is usually
required of a court of first instance. In my view this Court is
entitled, therefore, to consider the evidence afresh.
[24] In March 1996, when the trial commenced in the
regional court, the complainant was sixteen years of age. She
appears to
be a mature and intelligent young person. It has been
established, however, that she was unreliable. She lied on an
important
aspect - by initially denying and later admitting that she
had sexual intercourse during 1993 to 1996 with men other than the
appellant. Moreover, on her own admission, she falsely told a
medical practitioner and the police that P. had raped her. It
is
possible that shyness or modesty initially may have prevented her
from telling the truth about having had sexual relations
during 1993
to 1996 but this is pure speculation as no evidence was led to
explain her contradiction. It is also possible that
the appellant
did, as the complainant alleged, persuade her to implicate P. but,
as I have earlier indicated, there was nothing
to show what the
appellant stood to benefit from doing so. The result is that the
complainant's untruthfulness casts a shadow
on her evidence and on
her credibility as a witness.
[25] There is an additional matter which needs to be
mentioned. In December 1995 the appellant's aunt, Ms M.M.,
suspected that
the relationship between the appellant and the
complainant might have had a sexual aspect to it. She then told
the complainant
about "fathers who love their children to such
an extent that the father would make love to them". She added
that
"the father would say other fathers also do this to their
children". At that time the complainant did not admit to her
aunt that there was a sexual relationship between her and the
appellant. When the complainant gave evidence at the trial some
months later, she testified that the appellant had said to her that
she should not have a guilty conscience about having sexual
intercourse with him as this was a normal occurrence in other
families as well. A consideration of this evidence gives rise
to a
suspicion that the complainant might have been influenced by her
aunt to implicate the appellant.
[26] Although the appellant's evidence was also not
free from blemish, his version cannot be rejected out of hand in the
absence
of adverse credibility findings by the trial court. The
beatings which he meted out to the complainant, severe as they were,
might indicate that he was not a caring father, but it cannot be
inferred from this, even coupled with the fact that he gave her
gifts, that he also indulged in sexual relations with her.
[27] Taking all of the facts into account, I am not
satisfied that the state has proved the appellant's guilt beyond
reasonable
doubt. The result may be unfortunate as the
complainant's version might be true and there is certainly
considerable suspicion
that the appellant might be guilty of the
offence with which he was charged. The appellant, however, is
entitled to the benefit
of the doubt.
[28] In the result the appeal succeeds and the
conviction and sentence are set aside.
.............................
L S MELUNSKY
ACTING JUDGE OF APPEAL