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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION

                                                                                    Case no: CA&R94/14

                                                                                  Date Heard: 30/07/14

                                                                              Date delivered:12/08/14

In the matter between:

SAKHUMZI NUKANI                                                                                             APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

SMITH J:

[1] The appellant was convicted of rape in the Cathcart Regional Court and sentenced to 6 years’ imprisonment. He appeals against his conviction with the leave of the court a quo.

[2] The state alleged that on 24 March 2009, and at N. L., C., the appellant raped the complainant, one B. P. In his plea explanation the appellant asserted that the complainant was his girlfriend at the time of the incident, and that she had consented to sexual intercourse. He claimed that after they had sexual intercourse, the complainant had told him that she wanted to go home because she had to write an exam the following day. In addition, he averred that the complainant had laid a false charge against him because he had refused to walk her home.

[3] The complainant denied that the she had been romantically involved with the appellant at the time. She asserted that their relationship, which had started in 2008, terminated in 2009, because he had cheated on her.

[4] She testified that on the night in question she was at the house of her then boyfriend, oneX.D. and, at about 7.30 pm, had asked his permission to go and watch television at her maternal aunt’s house. Upon arrival at her aunt’s home she saw the appellant and immediately thereafter left because she feared that her boyfriend would have been upset if he had known that the appellant was also there.

[5] After she had left her aunt’s house, the appellant approached her, pleaded for an opportunity to talk with her and asked her to accompany him to a place called “Simunye”. When she told him that on their way there they would have to pass her boyfriend’s house, he suggested that they take an alternative route. She then left with the appellant. After they had passed “Simunye” she attempted to turn back, but the appellant prevented her from leaving and slapped her with an open hand. She had then became afraid and thus obeyed all his instructions.

[6] She thereafter accompanied the appellant to his parental home where she remained in the dining-room, while he went into the kitchen. At some stage his mother briefly joined him in the kitchen and later returned to her room. The appellant thereafter also exited the kitchen and instructed her to accompany him. When they had reached the outside gate the appellant apologised for having assaulted her, saying that he did not know why he got angry. She accepted the apology and they proceeded further until they reached a house where they used to spend time together while they were still in a relationship. She agreed to accompany him to the house, provided that they would not be long. The house had no electricity and red cushions had been strewn on the dining-room floor.

[7] The appellant then asked her to accompany him into one of the rooms. When she refused he dragged her along, threw her down on something that looked like a bed, again slapped her with an open hand and took off her panties. He then had sexual intercourse with her against her will. After he had raped her he again asked her to have sexual intercourse with him. She responded as follows:

“Isn’t it the first thing that you should have done, shouldn’t you have asked me to have sexual intercourse with me before forcing yourself on me, so that you would be able to hear whether I will agree or disagree to have sex with you.”

[8] His reply was that “he takes what he wants”. She then asked for permission to urinate and used the opportunity to flee home, leaving her shoes and panties behind. The appellant pursued her until she had reached her home. He had remained outside; swearing at her after her step-father had opened the door to let her in.

[9] Her step-father and mother had asked her what was wrong because they could hear the appellant shouting outside. She told them that “nothing’s happened” and that they could go back to sleep. When she was asked by the prosecutor why she did not tell her parents about the rape, she replied as follows:

“I did not think of it at that time. I only thought of it after I had opened up (?) after I had gone to Tiyoyo’s place”….It was only then that it sinked (?) in that Sakhumzi had raped me, what he had done to me was not right.”

[10] It appears that it had taken some time for her to fully realise what had happened to her. She explained that she experienced the following emotions after she had gone to lie down:

“At that moment I began to feel – to have an uneasy feeling, not feeling okay. I started ... (inaudible) myself, my body. I could even sense his smell and I started to cry”.

[12] At approximately 12 pm, she went to her boyfriend, X.D.’s house and told him and a tenant, who had since passed away, about the rape. She spent the night at D.’s house and reported the rape at the Cathcart police station the following morning. She was thereafter taken to the Komani Hospital in Queenstown for medical treatment and examination.

[11] The state also led the evidence of X.D. who confirmed the complainant’s version in all material respects.  Thibelo Makhombe, a forensic nurse, thereafter testified that she examined the complainant at the Komani Hospital in Queenstown on 25 March 2009. She had observed bruising on the complainant’s vaginal area, tears in her anal area and a white vaginal discharge, which in her opinion were consistent with sexual assault and forced penetration.

[12] The appellant’s testimony was mainly aimed at establishing that he and the complainant were romantically involved at the time of the alleged rape and that she had consented to the sexual intercourse. He testified that after they had watched the television programme, “Generations”, at the complainant’s aunt’s house he had asked her to accompany him to a house which he shared with his cousin. They first went to his parental home where his mother was also present. After he had eaten they left for his house where he lit a candle, took cushions from a sofa and laid them on the floor. He thereafter asked the complainant to lie down with him. They thereafter had sexual intercourse.

[13] At about midnight she woke up and asked him to accompany her home as she had to write a test the following day. When he refused the complainant became upset. She thereafter got up, got dressed and left, leaving her cellular phone and shoes behind. After the complainant had left he “thought about” the cell phone, opened the door and shouted at her to fetch her phone. She however ignored him. He thereafter went back inside to sleep. He was adamant that the complainant was his girlfriend at the time.

[14] The defence thereafter called the appellant’s sister, Margaret Nukani, who testified that the complainant and the appellant had a relationship during 2011. She had witnessed them sleeping together at her parental home when she returned home from Cape Town during 2011.

[15] Mr Solani, who appeared for the appellant, could not proffer any sound criticism of the complainant’s testimony, and was constrained to concede that there were no inherent improbabilities or contradictions in her testimony which could have justified its rejection. He submitted, however, that the magistrate should have found that it was reasonably possible that they had been in a relationship at the time and that the complainant had consented to the sexual intercourse.

[16] In my view Mr Els, for the state, correctly submitted that the magistrate had approached the complainant’s testimony with the requisite caution, and had properly found her to have been a credible witness. In addition, her testimony had been corroborated by the medical evidence in material respects.

[17] The only question which then requires consideration is whether the magistrate should have found that the appellant’s version was reasonably possibly true. In this regard Mr Solani argued that the fact that the complainant did not report the rape to her parents at the earliest available opportunity, supports the appellant’s version that the sexual intercourse had been consensual. Her subsequent report to her boyfriend was an afterthought, prompted either by pangs of guilt or fear of discovery, or so he argued. I do not agree. It is understandable that the full implication of what had happened to her would have taken some time to sink in. The complainant had not been raped by a stranger, but by somebody with whom she previously had a relationship. She had obviously trusted him hence the fact that she was prepared to accompany him to the house where the rape took place. She had in any event later that same evening reported the rape to her boyfriend. If indeed the sexual intercourse had been consensual, any feelings of guilt could easily have been assuaged by her simply keeping quiet about the incident.

[18] Mr Solani also argued that the appellant’s version is supported by the fact that the complainant had, even on her own version, willingly accompanied the appellant, and even agreed to follow a route which would have avoided detection by her boyfriend. He submitted that under these circumstances the appellant’s assertion that the sexual intercourse had been consensual is reasonably possibly true. This argument of course ignores the fact that even if the complainant had gone along with what might have been a flirtatious dalliance, she still had the right to refuse sexual intercourse at any point.  In any event, in my view the evidence has established beyond reasonable doubt that she did in fact not consent to sexual intercourse.

[19] The appellant’s explanation as to what had caused the complainant to leave in such a hurry and greatly distressed state (to the extent that she had left without her shoes and panties), also appears contrived and improbable. It is in my view improbable that the complainant would have been so disproportionately upset simply because the appellant did not want to accompany her home. Not only was she clearly upset about something, but also in a great hurry so as to leave without her shoes and panties. I am in no doubt that these could not have been the actions of a woman who just had consensual sexual intercourse with her boyfriend.

[20] The magistrate was understandably also critical of the defence’s failure to challenge, during cross-examination, amongst others, the complainant’s version that he had pursued her to her home. It was only during his evidence-in-chief that this important aspect of the complainant’s testimony was gainsaid.

[21] I agree with Mr Els that the testimony of the appellant’s sister did not really take the matter any further as she clearly had no knowledge of the status of the relationship between him and the complainant at the time of the alleged rape. Such general evidence of the existence of a relationship would in any event, in terms of section 56 (1) of the Criminal Law (Sexual Offences and Related Matters) Amendment, Act 32 of 2007, not have constituted a valid defence to the rape charge. We are accordingly satisfied that the magistrate was justified in rejecting the appellant’s version as being false, and correctly found that the state succeeded in proving the appellant’s guilt beyond reasonable doubt.

[22] In the result the appeal fails and the appellant’s conviction and sentence are confirmed.

_____________________

JE SMITH

JUDGE OF THE HIGH COURT

 

I agree.

 

___________________________

C.MEY

ACTING JUDGE OF THE HIGH COURT

 

Appearance

Counsel for the Appellant           :        Advocate Solani

Instructed by                              :        Legal Aid Centre, Grahamstown

 

Counsel for the Respondent       :        Advocate Els

Instructed by          :        Director of Public Prosecutions,

 

Date Heard                            :        30 July 2014

Date Delivered                       :        12 August 2014

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