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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
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 16 June
1979. She grew up under the care
of her maternal grandmother, Mrs Nancy Mlambo, in an area of Transkei known as
Sulenkama. 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 Monica Mlambo, 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, Andile.
Subsequently she told the father of Pakamile Pongwana
(who might have been
Andile's brother) that she had had sexual relations with Pakamile. Furthermore
the complainant alleged in March
1994 that she had been raped by Pakamile 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
Andile or Pakamile 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 Andile 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 Pakamile. 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 (Pakamile's)
family". The
appellant denied that he had put any pressure on the complainant to induce her
to implicate either Andile or Pakamile.
[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,
Lindelwa, came to stay. Lindelwa
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 Lindelwa 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 Nancy Mlambo (the complainant's grandmother) and her daughter,
Ms Monica Mlambo (the complainant's aunt). Mrs Mlambo, 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
Mlambo. 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 Mlambo 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 Mlambo, 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 Monica Mlambo, 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 Mlambo 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 Mlambo
contacting her mother, Mrs Nancy Mlambo, 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, Lindelwa, who also stayed in the appellant's
house. From the complainant's
evidence it would appear that Lindelwa might have
provided corroboration for her version. There is no suggestion that Lindelwa
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 Pakamile
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 Pakamile 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
Monica Mlambo, 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
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