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Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – GRAHAMSTOWN)

Case No: CA&R 63/10

Date Heard: 25/08/10

Date Delivered: 22/9/10

In the matter between

PHUMZILE JABAVU …..............................................APPELLANT

and

THE STATE …............................................................RESPONDENT

JUDGMENT

REVELAS J

[1] The appellant was charged, in the Regional Magistrate’s Court in Port Elizabeth, with rape, the State alleging that during the period 2002 to 2003 he had on several occasions raped his young daughter who was six years old when the first rape occurred.He pleaded not guilty.

[2] On 20 October 2008, the appellant was convicted of having raped his daughter on one occasion. Thereafter the case was postponed for purposes of leading the evidence of a clinical psychologist who prepared a report on the impact of the rape on the complainant. On 18 March 2009 the appellant was sentenced to life imprisonment. The appeal is against both conviction and sentence, leave having been granted on petition.

[3] Four witnesses testified on behalf of the prosecution at the trial. They were the complainant, her mother (Ms Jabavu), Doctor Mesilane, who examined the complainant and compiled a medico legal report, and Ms Dolo, the psychologist. Apart from the appellant himself, one other witness, Ms Jonas, testified on his behalf.

The Evidence

[4] That the complainant was raped by someone, was borne out by the forensic evidence presented at the trial. The identity of her rapist remained the primary question for determination. The evidence of Dr Mesilane was that upon her examination of the complainant who was seven years old at the time, she concluded that the complainant’s absent hymen, in conjunction with a gaping vagina, were abnormal features in so young a girl. This led her to further conclude that the complainant was sexually penetrated, given the history of sexual abuse related to her. Her testimony withstood the cross-examination of Ms Rule who appeared for the appellant, and the magistrate therefore correctly found that the complainant was indeed raped.

[5] The complainant’s testimony was that she was raped “several times” and “on different occasions” by her father (the appellant) when her mother took the appellant’s father for his regular clinic visits. (The complainant, her parents and brother, all lived with the appellant’s father in his house). During the trial she only gave a description of two instances. The first incident of rape allegedly occurred in her parents’ bedroom. The complainant said it happened one morning before her father took her to school, when her mother had taken her grandfather to the clinic and her brother had already left for school. She said she was woken up by the appellant who told her to go to her parents’ bedroom. There the appellant raped her on the marital bed. She referred to it as her “mother’s bed”. She said she did not report the rape to anyone, because the appellant had warned her not to.

[6] According to the complainant, another incident of rape took place in a shack in the backyard of her grandfather’s house which the appellant had used as rudimentary gymnasium. She said the appellant positioned her on a “plank” and then raped her. I assume this “plank” was the ledge of an exercise bench. According to her, the appellant secured the shack door with a chain before he raped her. Unlike the previous occasion when she heeded the appellant’s warning not to report the incident, she decided to report the rape to her mother who was sleeping inside the house at that time. During her entire testimony, the complainant gave no details of any other of the alleged several rapes. This aspect is not insignificant when one has regard to the fact that the appellant was initially charged with two separate counts of rape.

[7] The complainant testified during her examination in chief, that when she told her mother of the rapes, her mother telephoned the police who arrived on the same day. At that stage the appellant had gone out for “fresh air”. When the police arrived later on the same day, she said they spoke to her mother for a while and left again, promising to return and fetch the appellant the following day. Although she did not say (and was not asked by the prosecutor) whether the appellant was actually arrested the following day, she did say that he was arrested at home, in the presence of her grandfather, her mother and herself.

[8] According to the complainant, the appellant slept at home that evening as usual, (after the first visit of the police), and her parents never discussed the incident. This bit of evidence appears to be somewhat improbable in the prevailing circumstances, particularly since it was common cause and apparent at the trial that the complainant’s mother, Ms Jabavu, did not show much restraint in expressing her feelings. She candidly (almost proudly) admitted to assaulting her husband’s paramours. She was apparently also given to threatening those whom she perceived had harmed her or who might do so in future. The appellant testified that the woman he had a relationship with during the relevant time made a point of running off whenever Ms Jabavu approached. He also testified that “my wife is an expert in threatening people”. The complainant also confirmed how angry her mother was when he took her (the complainant) to his girlfriend’s house to have her hair braided. (This happened during a period when the appellant and Ms Jabavu had reconciled after one of their temporary separations). It is therefore difficult to comprehend how Ms Jabavu could sleep peacefully in the same room with her husband, without any discussion about the allegations of rape raised by the police and her daughter that same day.

[9] The complainant also testified that she was medically examined by Dr Mesilane on the day after her father’s arrest. According to the J88 form she was examined on 28 July 2003. According to the appellant, he was arrested on 23 May 2003, which accords with the Charge Sheet (J15 Form) which reflects the appellant’s first appearance in the case under consideration as 25 May 2003. During cross-examination, when the complainant was questioned about her father’s whereabouts on the day her mother took her to the Dora Nginza hospital to be examined (the day after the rape in the shack), she answered that on that day her mother telephoned the police “again”, and when they arrived the appellant was arrested and she and her mother left for the hospital where she was examined. This version contradicts her earlier testimony.

[10] The complaint’s testimony is also irreconcilable with that of her mother. Ms Jabavu testified that the appellant’s arrest did not follow the day after her daughter reported the incidents, and also did not occur as a result thereof. According to her, the police arrived at her home in the course of investigating the alleged rape of her neighbour’s child. The appellant was their main suspect at that time, and they raised the question with her whether the appellant could possibly have raped any of her own children. This visit and the appellant’s arrest in connection with the other matter, caused her to ask the complainant whether she was raped by her father and the complainant told her that she was raped more than once by the appellant.

[11] When the appellants’ version was put to the complainant, namely that he was arrested in connection with this matter when he attended court in the other matter (relating to the neighbour’s daughter), and not at their home as she said, she indicated that she was tired and thereby avoided responding to the question.

[12] Before returning to Ms Jabavu’s reaction to the report made to her by the complainant, I must pause to point out that there was evidence before the trial court that the neighbour’s child had died from HIV related complications, but it was confirmed that the appellant, who submitted to being tested for the virus in question, tested negative, a fact which excluded him as a suspect in that matter. This evidence is relevant because it indicates that there was possibly another adult in the neighbourhood who raped children.

[13] Ms Jabavu said her reaction to the rape allegation was disbelief because the appellant and his daughter had a good relationship “like a normal father and child”. This was confirmed by the appellant who said he always treated his daughter with respect. She called upon her mother-in-law to speak to the complainant, who repeated to her paternal grandmother what she reported to her mother. The appellant confirmed that the complainant had also related to his mother (when called by Ms Jabavu) that she was raped by him, but stated that his mother had told him that she believed that the child was told by someone else what to say.

[14] Ms Jabavu testified that after the report she left their home with the complainant and her other child (the complainant’s brother), to visit her own mother in Hankey for the June 2003 school holidays. They returned home that same month, only to discover that the appellant had moved out of the home. During cross-examination, she admitted that she assaulted the appellant’s girlfriend who had moved in with him during her absence, when she was in Hankey. The appellant and his wife were only divorced in November 2007 more than a year after the trial began.

[15] The appellant, who denied ever raping his daughter, testified that he and his wife had a very volatile relationship. She often left him after heated quarrels and went to her mother in Hankey, only to return after a while and then they would reconcile. He argued that Ms Jabavu had influenced the complainant to falsely implicate him. In support of his version, the appellant called Ms Totjela Jonas as a witness. She was involved in a relationship with his elder brother. She testified that she was staying in the appellant’s father’s home for a while when Ms Jabavu and her children returned from Hankey in June 2003. She claimed she had overheard an argument between the complainant and her mother, who tried to persuade the complainant to implicate the appellant in committing sexual misconduct with her. Upon discovering that she may have been overheard, Ms Jabavu then pleaded with Ms Jonas not to repeat what she had heard, and explained that she wanted to lay charges against the appellant as a ruse to effect a reconciliation.

The Magistrate’s Findings

[16] The magistrate had, not unjustifiably, certain misgivings about Ms Jafta’s testimony. For purposes of this judgment it is not required to analyse his reasoning in that regard. There are however other causes for concern relating to the findings made by him which resulted in the appellant’s conviction. I have already alluded to some of them above.

[17] In his judgment, the magistrate indeed referred to the cautionary rules applicable when evaluating the evidence of single witnesses and children, and said he also took into account that the ten-year-old complainant was required to give evidence about events that occurred four years before, when she was only six years old. He was also alive to the fact that there were discrepancies between the complainant’s evidence and her mother’s evidence regarding when exactly in relation to the appellant’s arrest the report about the alleged rapes was made. The magistrate described the discrepancies as “a vast difference” and attributed them to the complainant being mistaken about when she made the report to her mother (that it was made the day before the appellant’s arrest). This was borne out, he reasoned, by the fact that the appellant’s version supported Ms Jabavu’s evidence in that his arrest in connection with the present matter occurred shortly after his initial arrest in respect of the case relating to the neighbour’s child. The magistrate erred in making this observation. According to the appellant, he was arrested on 23 May 2003 and Ms Jabavu said that she only reported the matter to the police the month after her return from Hankey, which was in July 2003, and then the police took her and the complainant to the Dora Nginza hospital where the complainant was examined. This occurred on 28 July 2003. Ms Jabavu in fact said she did not know when the appellant was arrested. However, as can be gleaned from the J15 Form, the appellant’s first appearance in this matter was on 25 May 2003, three days after he said he was arrested in this case. Either the magistrate misunderstood Ms Jabavu, or she contradicted herself. Either way, the magistrate incorrectly found that the version of the appellant and Ms Jabavu corroborated each other on this aspect. The complainant’s chronology of when she reported the rapes to her mother, when her father was arrested, their visit to Hankey, and the visit to the hospital, differs from those of her mother and the appellant. These discrepancies ought not to have been explained away as mere mistakes attributable to the complainant’s young age. In my view, they impacted substantially on the reliability of the complainant and her mother as witnesses for the State.

[18] Ms Jabavu impressed the magistrate as an honest witness because she was so candid and forthright about assaulting the other women in her husband’s life. On the other hand, her candour also demonstrated her extreme jealously of other woman and her lack of self restraint. She committed violence in front of her children and appeared to be vengeful. It was common cause that her relationship with the appellant was volatile, marked by quarrels, separations and reconciliations, all of which tend to support the appellant’s contention, that his wife may still have had feelings for him and wanted a reconciliation in 2003, despite the rape allegations.

[19] On her own version, Ms Jabavu did not believe her daughter, even after a visit from the police in connection with another allegation of child rape against her husband. She only followed up the matter in July 2003, more than two months after the report was made to her, and after the appellant had moved out of their home to live with his girlfriend. When Ms Jabavu returned from Hankey, which was still in June 2003, she waited until the end of the following month to go to the police with this matter. It was during this period that she apparently committed a further assault on the appellant’s girlfriend. In these circumstances, the fact that she allowed a period of two months to pass before she went to the police was not insignificant.

[20] The trial was interrupted and postponed on several occasions for various reasons and ran for more than two years. The ten year old complainant testified in 2006 about events which took place in 2002 and 2003, when she was six and seven years old. The substantial period of four years between the events she testified about and her actual testimony has significance when assessing the reliability of her evidence in this appeal.

[21] The aforementioned factors all have the cumulative effect of compromising the reliability of the complainant’s version. In my view, the evidence relied upon by the magistrate to reject the appellant’s denial as false, was insufficient and his application of the cautionary rules inadequate. Even though section 208 of the Criminal Procedure Act 51 of 1977 permits the conviction of an accused on the evidence of a single witness, who can be a child, it does not mean that in matters where there are charges of a sexual nature and the single witness is a child, convictions should follow with less caution. The evidence still has to be reliable and “good enough to discharge the onus of proof of guilt beyond reasonable doubt”.¹ Courts are still, and should always be, required to treat the evidence of a single child witness with caution.²

[22] The aforesaid principles ought to have been properly adhered to by the trial court, and the appellant’s version ought not to have been excluded as reasonably possibly true, and the appellant should have been acquitted.

[23] Accordingly, the appeal succeeds and it is ordered that the appellant’s conviction and sentence are set aside.

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E REVELAS

Judge of the High Court

PLASKET J: I agree.

_________________

C PLASKET

Judge of the High Court

Counsel for the Appellant: Adv MM Xoswa

Instructed by: Legal Aid, Grahamstown

Counsel for the Respondent: Adv D Els

Instructed by: Director of Public Prosecution

Grahamstown

Date Heard: 25 August 2010

Date Delivered: 22 September 2010

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