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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.
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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 Dolly Hlalele. 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 Dolly: 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 Dolly's mother, Anna Hlalele, in the servant's quarters at the latter's place of employment in
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Lower Houghton Johannesburg. Anna's husband (Dolly'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 Dolly, Anna, and the accused, who was a friend of Anna's and was a frequent visitor.
In summary the evidence of Dolly was this. Anna left the room to go to her employer's kitchen, leaving Dolly and the accused in the room. Dolly was sitting on a chair,reading a book, and the accused was also sitting in a chair. The accused then went to the door and bolted it.
Approaching Dolly, 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.
Anna Hlalele 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 Dolly'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 Dolly's panties and red blood; Dolly 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 Anna 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 Dolly and obtained a lift to the hospital where she left
5
Dolly. 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 Dolly who had with her a pair of green panties which were stained with blood. Dolly 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 Dolly. 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 Dolly had had intercourse.
In his evidence the accused said that he first
visited the premises concerned in January 1984 when Anna
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 Dolly at the premises in February
- she stayed there from then on. He and Dolly were lóvers,
from February "until up to date." He slept with her once
only before 5 August 1984. On the evening of that day, he
said -
"...Dolly's mother left for the main house. Dolly's father was not in the room so I said to Dolly, 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 Dolly'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 Dolly's dress and saw . that she did not have her pantie on. He then went out to tell Dolly's mother. Then Dolly's mother came to the room, scolded me and said I had raped
7
Dolly..."
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 Dolly 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 Dolly's evidence to the close critical analysis which it required.
There are, it is plain, features in Dolly's evidence and that of her mother which render that evidence subject to criticism. Some of them may be mentioned.
Dolly'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 Dolly's screams. Dolly 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 Dolly. This formed a basis for a defence argument that Dolly'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 Dolly'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 Anna's departure before they had intercourse.
9
The accused said that it was the father who first entered the room. Anna 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 Anna'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."
Dolly 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 Dolly had no bruises.
Dolly'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 Dolly, contrary to her denial, may have agreed to have intercourse with the appellant? To that narrow question none of the criticisms of Dolly'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 Dolly 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 Dolly 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 (Dolly'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 Dolly'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 Dolly, 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 Dolly - "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 Dolly 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
Dolly had had intercourse before that.
The accused's accounts of post-coital events were
inconsistent and contradictory. It was put to Dolly 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 Dolly's step-father
knocked on the door which the accused opened. The father
"lifted Dolly's dress and saw that she had not her pantie
on." He said that when the mother got into the room, Dolly
was on the bed, she had a shirt on, and she was covered with
a blanket. He said that when they had intercourse, Dolly
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, Dolly 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 Dolly
have an affair and they are not told...
I thought Dolly's step-father was going to stop us
I have no other reply."
The most telling point against the accused's story
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of intercourse with consent, and which he could not explain
away, was Dolly'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 Dolly's
dress and saw that she did not have her panties on - he did
not mention blood. Asked by the prosecutor to account for
Dolly's injuries, he said:
"(T)his happened when Dolly 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
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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
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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 Dolly 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
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