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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

Case No: CA&R 57/2010

Date Heard: 25/08/10

Date Delivered: 21/10/10

In the matter between

ZIWELAKHE ELLIOT MATYILA …........................................Appellant

and

THE STATE .....................................................................Respondent

APPEAL JUDGMENT

REVELAS J

[1] The appellant appeared in the Regional Court, Port Elizabeth charged with one count of rape. The State alleged that he had raped the eleven year old complainant in his bedroom on 21 April 2000. On 7 November 2007, he pleaded not guilty to the charge and denied that he was at home on the date the incident allegedly occurred. He stated that he never even saw the complainant on that day.

[2] On 19 August 2009, he was convicted of attempted rape and sentenced to six years’ imprisonment. With leave of this Court, the appellant appeals against both his conviction and sentence.

[3] Two witnesses testified for the Prosecution. They were the complainant and her aunt, Mrs Nomaphulo Mankwatsho. She was the sister of the complainant’s grandmother, and the aunt to which the complainant referred to as “granny” in her testimony. The appellant testified on his own behalf and called no further witnesses.

The Complainant’s Evidence

[4] When the complainant testified, she was eighteen years old. She told the trial court that on the day in question (she was eleven years old then), the appellant approached her where she was playing with other children near the remains of an old truck. He requested her to go and buy matches for him.

[5] She accompanied him to his home, because that is where he would have given her the money with which to make the purchase. At his home, however, he took her into his bedroom. There, she said, he removed her trousers and underwear and his own overalls and boots, placed her on the bed, and inserted his penis into her vagina.

[6] Just then, she said, a child peeped through the window and reported what she saw to the complainant’s aunt and uncle. This evidence was hearsay and the child in question did not testify. The complainant said her aunt had told her that the child saw them and called her. When the complainant’s aunt arrived in the company of neighbours and her brother (the complainant’s grandfather) who lived next door, they knocked on the appellant’s door. He told them he was busy and they should wait. When he opened the door for them, the complainant, obeying his instructions, was hiding behind the door, fully clothed.

[7] The appellant had also got dressed in the interim. He told the people at his door that he did not have any knowledge of a child in his house. The complainant was, however, spotted by some children who were also present, and she came out from behind the door.

[8] The complainant was thereafter subjected to an examination of her genitalia by an elderly woman, in the presence of her aunt. The elderly woman, Mrs Mbele, reported to her aunt that the complainant had been penetrated by the appellant.

Medical Evidence

[9] According to the complainant, the medical practitioner who subsequently examined her at the Dora Nginza Hospital, where she was taken by her aunt, concluded that she “had been raped but not the whole penis was inserted. Only the first part of the penis went into my vagina”. The medical report indicates that there was bruising of the complainant’s right labia minora and minor abrasion’s of the fossa navicularis and that there were no injuries to the hymen. The doctor in question never testified.

Mrs Mankwatsho’s Testimony

[10] She testified that she knew that on the day in question, the complainant was playing near the truck with other children. The complainant was in her care at the time. She went out to look for her after a while, and noticing that the complainant was no longer at the truck, she made inquiries about the child’s whereabouts with the neighbours. Some children then reported to her that the complainant was at the house next door (the appellant’s house) “doing dirty things” and she accompanied the children to the house, where they peeped through the window, and saw the complainant. On top of her, Mrs Mankwatsho said, was “this young man”, whom she identified as “Matyila,” the appellant, wearing a vest.

[11] Mrs Mankwatsho then left to call her brother, next door, and returned to the house with other members of the community. She said they initially could not find the complainant but when she was seen later she was taken back to the house next door, where Mrs Mmbele, examined her.

[12] Mrs Mankwatsho also testified that some time after the incident, she received a letter from the appellant, which the appellant admitted he wrote. The letter was written in Xhosa and translated for the benefit of the court. In his letter the appellant asks his neighbours (the complainant’s family) to forgive him. He offered them money, in the amount of R400.00 or R500.00, in exchange for not pressing charges against him. In the letter he admits that he committed “a disgraceful thing” and that he had betrayed their trust. He told them that he did not want to loose his employment position and hoped that as neighbours they would not “bury each other”, because of this incident.

[13] The appellant alleged that he was coerced to write the aforesaid letter by gangsters in the St Albans prison, where he was awaiting trial. He said they kicked him after he told them he was arrested and charged with raping a child. In court he still maintained that he was not at home on the day in question and never saw the complainant on that day and never asked the complainant to buy anything for him. The appellant contended that a spat between himself and Mrs Mankwatsho’s brother (the complainant’s grandfather), which occurred some time before this incident, motivated the complainant’s family to falsely implicate him.

[14] During argument in the appeal, much was made of the fact that the complainant was a single witness, that the medical practitioner who examined the complainant noted no serious injuries, and that Mrs Mankwatsho was seventy years old when she peeped through the high window of the appellant’s bedroom. It was submitted that she could have been mistaken as to what she said she observed. The lapse of seven years before the witnesses gave evidence was also emphasized.

[15] The magistrate found both the complainant and Mrs Mankwatsho to be reliable witnesses despite the passage of time. He pointed out that the witnesses made their statements shortly after the event and were able to refresh their memories before they testified. In his judgment, the magistrate found that it was highly unlikely that the community would have been summonsed to go to the appellant’s house by the complainant’s aunt, if nothing happened to the complainant, and if the appellant was not even at his home. His finding that the complainant and Mrs Mankwatsho clearly corroborated each other’s evidence in all material aspects, seems to be correct.

[16] The magistrate rejected the appellant’s suggestion that false accusations were made by the complainant’s family because of a previous argument with the complainant’s grandfather, because this was never put to Mrs Mankwatsho, despite its highly relevant content.

[17] The magistrate can also not be faulted for rejecting the appellant’s version about the letter he wrote. If some prisoners felt aggrieved that the appellant had been charged with raping an under aged girl (as suggested by him) with the motive of forcing him to own up to his sins, so to speak, the letter would have been more in the nature of a confession. It is not. The letter, in essence, was a plea to his neighbours to drop charges in exchange for money. The purpose of the letter was to benefit himself. It was not an expression of unconditional remorse or an unequivocal admission of guilt. The content of the letter is clearly at variance with a version that the appellant was coerced by morally outraged gangsters to write a letter or to admit his guilt and to make amends. If the gangsters just gratuitously assaulted the appellant when they heard about the charges, that does not add up to coercion either.

[18] The magistrate correctly took into account that the medical evidence in this matter was not sufficient to sustain a rape conviction. However, the magistrate was still faced with the evidence, which was not shaken in cross-examination, that the appellant who had taken off his overalls and boots was seen on the bed with the complainant who wore no panties. Thereafter a medical examination showed that there were signs that her genitalia were slightly bruised. This evidence is disputed only by a bold denial on the part of the appellant, that he was even there. His version is also contradicted by the letter he himself wrote. Given the nature of this evidence before him, the magistrate’s finding that the appellant wanted to rape the complainant, and was probably interrupted by the arrival of members of the community, is not open to criticism. Accordingly, the appeal against the conviction must fail.

[19] Insofar as the sentence of six years’ imprisonment is concerned, the appellant should consider himself fortunate to have been sentenced so leniently in the circumstances. Attempted rape is a very serious offence. If the community did not arrive, he probably would have completed the act of sexually penetrating the complainant.

[20] In the event, the appeal against conviction and sentence is dismissed.

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E REVELAS

Judge of the High Court

Plasket J: I agree.

_________________

C Plasket

Judge of the High Court

For the Appellant: Adv A de Jager

Instructed by: Justice Centre, Grahamstown

For the Respondent: Adv D Els

Instructed by: Director of Public Prosecutions

Grahamstown

Date Heard: 25 August 2010

Date Delivered: 21 October 2010

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