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[2011] ZAWCHC 400
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Pikoko v S (A704/2010) [2011] ZAWCHC 400 (10 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A704/2010
DATE:
10
JUNE 2011
In
the matter between:
XOLISA
PIKOKO
…...........................................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
BLIGNAULT.
J
:
On
3 March 2010, appellant was convicted in the Regional Court at
Wynberg on a charge that on 4 May 2009 he raped A P, then nine
years
old. On 23 April he was sentenced to a period of 18 years
imprisonment. With leave of the court a
quo,
appellant
appeals against his conviction and sentence.
Ms A P, the complainant,
testified that appellant was the brother of aunt's husband. At the
time of the incident she stayed with
her father and mother, but that
night she slept with her aunt. She slept in one room with her cousin
on one bed and appellant
on the other bed. Her aunt slept in another
room with her husband and a young child. Appellant came to her bed
and pulled off
her panties. He undressed himself and put his penis
in her vagina. He made movements on top of her. When he had
finished, she
sat on a sofa for a while and then returned to bed,
when appellant told her to do so. She fell asleep.
Early the next morning,
she told her aunt, Nothemba, what had happened. A few days later her
aunt told her mother. Her mother
called the police and she was later
taken to a clinic. Under cross-examination the complainant testified
that appellant raped
her a second time. According to her, he woke
her up, took off her panties and put his penis in her vagina. After
that she continued
sleeping. The next night she went to sleep with
her mother.
Ms Nomthandazo Ncokwe is
the complainant's aunt. On the morning after the night in question,
the complainant told her that appellant
had raped her. She and her
sister looked at her vagina to see whether there were any signs that
she had been raped. (They did
not find any signs, but the magistrate
mistakenly said in his judgment that they had fact found signs of a
rape). She decided
not to tell the complainant's mother immediately,
because her mother was pregnant, but on the Sunday she told her what
had happened.
Themba Petshe is the
complainant's mother. She confirmed that Ms Ncokwe, her sister, told
her on the Sunday that appellant had
raped the complainant. She
reported the matter to the police.
Ms Faziela Bartlett, is
a nursing sister working for the Department of Health at the D F
Jooste Hospital. On 15 May 2009, she
examined the complainant, this
was about 12 days after the incident. She did not find any vaginal
injuries or scars during the
gynaecological examination. She noted
that the complainant had a large vagina for her age. I may add that
she also noted that
she had an annular hymen, but that seems to be
irrelevant. As to the question of the large vagina, she said that
her findings
were not inconsistent with the absence of vaginal
injuries. Under cross-examination she said that on her findings, she
could
not exclude a sexual assault. I will return later to Ms
Bartlett's evidence.
Appellant testified that
he was 37 years old. He stayed with his parents until 2007 when he
moved to the complainant's house.
He stayed there until she chased
him away. He denied that he had sexually assaulted the complainant
as had been alleged by her.
The magistrate
summarised the evidence in the matter and then dealt with the
impressions created by the witness. The complainant,
he said, made a
positive impression. Despite her young age, she testified in a
meaningful, logical and chronological manner.
She had a good recall
of the events and she was able to provide considerable detail. The
magistrate mentioned two contradictions
in the evidence, but he held
that these were not material. The first was that she testified under
cross-examination that appellant
raped her twice. The magistrate
said that this contradiction was understandable as she was but nine
years old and that it was
a stressful experience for her. The second
contradiction was that she told her aunt that appellant had kissed
her on her mouth
and her breasts. This did not form part of the
complainant's own evidence.
The magistrate also
mentioned that appellant testified that he could only walk with
crutches. This was contradicted by the aunt's
evidence that it was
possible for him to walk without crutches if he could support
himself by holding on to furniture in the
house. (The magistrate
appeared to have attached some significance to this evidence, but in
my view completely neutral). The
magistrate then said the following:
"Dit is duidelik
uit die getuienis van suster Bartlett dat hierdie klaagster
inderdaad verkrag is. Die abnormale groot vaginale
opening is "n
waarborg vir die betroubaarheid van die klaagster se getuienis in
daardie opsig. Daar is geen twyfel in die
hof se gemoed nie en die
hof aanvaar dat suster Bartlett se getuienis dat die klaagster
inderdaad dan verkrag is."
The magistrate then
mentioned the surrounding circumstances, the report made by the
complainant and the fact that there was no
reason for the
complainant to falsely implicate appellant as reasons when she
rendered her version reliable. In this discussion,
the magistrate
again mentioned what he regarded as Ms Bartlett's finding that the
complainant had been raped. Thus he says:
"Dit is duidelik
ook dat hier nie Yi gefabriseerde of Vi opgemaakte weergawe is nie,
gesien in die lig van die getuienis
van suster Bartlett. Hierdie
voorval is dus nie Yi figment van die verbeelding van die klaagster
nie, sy is inderdaad verkrag."
Then a little lower down
on the same page:
"As daar niks
gebeur het nie soos die beskuldigde gese het, waarom sal suster
Bartlett vind dat die vaginale opening inderdaad
so groot is?"
And then also two lines
lower down:
'"n Waarborg van
die betroubaarheid van haar getuienis kan gevind word in die mediese
getuienis."
The magistrate gave a
full judgment on sentence and sentenced appellant to 18 years
imprisonment. It is apparent that the magistrate's
finding that
Sister Bartlett's evidence to the effect that appellant raped the
complainant, played a vital role in his reasoning.
This finding,
however, as I will show, is simply not justified.
There are two concepts
in Ms Bartlett's evidence which appear to have given rise to
confusion. The first is her note on the J88
form and confirmed in
her evidence, that the complainant had an annular hymen.
Unfortunately her explanation of what this is,
was not properly
reported. On the face of the record, her meaning and significance of
this concept are not clear, but in the
context of the evidence and
the judgment, this seems to have been a perfectly neutral factor in
regard to the question whether
any of the medical findings proved or
disproved that appellant raped the complainant.
A second concept which
gave rise to confusion is the statement by Sister Bartlett that the
complainant had a large vaginal opening
for her age. The
significance of this concept was also not properly explained. In the
evidence in chief led by the prosecutor,
there was no particular
significance attached to this evidence. On the face of it, it was
simply mentioned as a anatomical fact.
The only point that the
prosecutor appeared to want to establish is that the absence of
visible injuries at the time of the examination
was not inconsistent
with an alleged penetration which took place 12 days earlier.
Some of Ms Bartlett's
answers under cross-examination are difficult to reconcile with her
evidence and might have given rise to
further confusion. The general
thrust of her evidence, however, is relatively clear. As put at the
end of the cross-examination,
she agreed that on her findings she
could not exclude penetration. The fact that on her findings she
could not exclude penetration,
however, is logically and practically
something totally different from stating that the vaginal opening in
fact proved that penetration
took place. On the one hand the absence
of the exclusion simply means that it is possible, and on the
evidence she cannot exclude
it. The fact that a finding proves
vaginal penetration is something very different, because in that
case it is evidence supporting
or proving a particular fact.
In the magistrate's
summary of her evidence, he made certain clear remarks about this
evidence. It appears though that the magistrate
concluded that the
large vaginal opening can be regarded as positive proof that vaginal
penetration took place. The magistrate's
understanding of Ms
Bartlett's evidence, therefore, was that, presumably as a result of
the penetration and the object which
penetrated the vaginal opening,
it was widened as a result of that act and such widening, or
enlargement, was still visible after
12 days.
Upon a proper
construction of this evidence and bearing in mind that the onus of
proof, of course, is on the state, it seems to
me that one cannot
attach more significance to this enlarged vagina, other than it is
simply an anatomical fact which is perfectly
neutral as between
proof that penetration took place or, conversely, proof that
penetration did not take place.
I conclude, therefore,
that the magistrate misdirected himself in regard to the meaning,
weight and effect of Ms Bartlett's evidence.
Her evidence, on
analysis, is neutral as regards to the question of penetration, it
does not contribute to or corroborate the
state's case. At best one
can say it is not inconsistent with the state's case. The
magistrate's approach, therefore, was materially
flawed.
The magistrate
approached the totality of the evidence, including that of Ms
Bartlett. He came to a particular opinion and conclusion
and it
would be impossible for us to try and exclude Ms Bartlett's evidence
from the balance of the evidence.
In the result I am of
the view that there is not sufficient evidence to have justified the
conviction of appellant. I am accordingly
of the view that the
appeal should succeed and that appellant's conviction and sentence
should be set aside.
DLODLO.
J
:
I agree.
DLODLO, J
BLIGNAULT.
J
:
It is then so ordered.
BLIGNAULT, J