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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, GRAHAMSTOWN

                                                                                    CASE NO: CC72/2015

                                                                                    DATE HEARD: 06 – 07/10/2015

                                                                                    DATE DELIVERED: 08/10/2015

NOT REPORTABLE

In the matter between:

THE STATE

and

GEVEN JEROME JAFTHA

JUDGMENT

PLASKET J

[1]        The accused, a 36 year old man, is charged with rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matter) Amendment Act 32 of 2007. He admitted in the explanation that followed his plea of not guilty that he had indeed had sexual intercourse with the complainant, a 13 year old girl, on the evening of 10 October 2014 at her house at [......], Misgund. The issue to be decided is a narrow one. It is whether or not the complainant consented to sexual intercourse with the accused.

[2]        It is not in dispute that on the evening of 10 October 2014, the complainant’s mother, who I shall refer to as GF, and her partner left the complainant and her siblings in the house for about half an hour from about 20h00 to about 20h30. When they returned, the back door of their house was open and the complainant was nowhere to be seen. GF went to her neighbour’s house where she found the complainant and GF’s youngest son, José, with the neighbour, Ms Maggie Jacobs.

[3]        The complainant was in an emotional state. She was shaking and crying. She had a towel around her waist and was naked under the towel. She had told Ms Jacobs, and then told her mother, that she had been raped by a man who had come to the house and had gained access by pretending to be one Bernard, the brother of GF’s partner. 

[4]        When they returned to the house, GF found a cap lying on the bed in the children’s room, which is where the complainant said she had been raped. GF identified the cap as belonging to the accused, who is her cousin. She said that whenever she saw him he was wearing it. Genetic material, in the form of skin cells, was obtained from the cap and matched by DNA analysis to the accused, thus establishing that he was the man who had entered the house. (He denied that the cap was his, but admitted that he had placed it on his head to try it on. Little turns on whether he was the owner of the cap in the greater scheme of things.)

[5]        The complainant testified that she had let the accused, who she did not know, into the house after he had identified himself falsely as Bernard. He had asked after a person named Sonny who she did not know. At some point, after the accused sat on a sofa, he told the complainant to sit on his lap. She refused and he pulled her by her arm into the children’s room where he took off her skirt and panties, as well as his jeans and underpants, before raping her.

[6]        When she got the opportunity, she went to her mother’s room where her siblings were asleep. She wrapped the towel around herself, took the youngest child, J., and managed to run to the house of Ms Jacobs where she reported what had happened to her. 

[7]        The accused’s version is that he had gone to the complainant’s house because that is where Sonny works repairing cellphones, he earlier having given Sonny six cellphones to repair. He found the front door open and the house in darkness. He entered the house and then entered a room, identified by the complainant and her mother as GF’s bedroom. There, by the light of the moon, he saw a child, the complainant, sitting on the bed.

[8]        He asked for Sonny and the complainant said he was not there. He was about to leave, having said that he would return later, when the complainant took hold of his arm. She told him that she was alone in the house and that her parents had gone out to drink. 

[9]        She then said that she had a problem: she needed a school uniform but her mother spent all their money on drink. She asked the accused to help her buy a school uniform. He said that he did not have the money on him then but that he was employed and would be paid the next Friday, whereupon he would give her the money she had asked for. 

[10]      The complainant then invited him to have sexual intercourse with her. He asked if she had had sexual intercourse before. She said that she had, and named a friend of his as having been her partner. She began to loosen his belt and then took off her panties. They then had sexual intercourse.

[11]      When he left the house, the complainant was fully clothed and in a relaxed state. Before leaving, he assured the complainant that he would not forget to give her the money he had promised. When he was cross-examined, he said that he had returned to the complainant’s house the following Friday, before midday, with R580 to give her but nobody was there.   

[12]      The complainant’s age was proved by her birth certificate being handed in by consent.  As stated she was 13 years old at the time of the incident. As she is young and because she is a single witness I shall approach her evidence with the caution enjoined by the law. I must, in order to accept her evidence, be satisfied that it is satisfactory in all material respects.

[13]      The complainant was, in my view, a good witness who, despite her tender years and lack of sophistication, gave clear and consistent evidence as to the events in issue. She was criticised by Mr Geldenhuys, who appeared for the accused, for changing her version in one respect. In my view, however, that arose from her becoming confused, rather than from a lack of candour, and, when she got the chance, she corrected herself. In any event, the issue concerned was peripheral to the core issue before me. She was also criticised for not having questioned the accused about him obtaining access to the house through false pretences, and why he had entered the house. In my view, there is nothing improbable about a scared child not asking these questions of a strange adult nearly three times her age in circumstances such as these. I am satisfied that this criticism of the complainant is groundless.

[14]      In my view, the evidence of the complainant was indeed satisfactory in all material respects. It was consistent and logical. She did not experience undue difficulty in cross-examination, despite being in the witness box for a relatively long period. Her evidence was supported by the evidence of her mother and Ms Jacobs, the neighbour, both of whom impressed me as witnesses. They saw her in an emotional state with a towel wrapped around her waist and she was naked beneath the towel. This is consistent with her version that she was raped by a stranger who entered the house, and utterly irreconcilable with the accused’s version that he left her fully dressed and calm after consensual sexual intercourse.

[15]      For the accused’s version to be accepted, I would have to find that the complainant had decided, as soon as the accused left, before her mother returned and for an unfathomable reason, to implicate him falsely on a charge of rape. In order to do so, she would have had to take off her skirt and panties, wrap the towel around her waist, concoct the false version of the stranger pretending to be Bernard entering the house and raping her, and pretend to be traumatised when reporting the incident to Ms Jacobs and her mother. What is more, she would have had to do all of this in a very short space of time. I saw and heard the complainant in the witness box and am sure that such duplicity and ingenuity, requiring such complex and speedy manufacture of factual allegations, is beyond her ability. Indeed, I am satisfied that the scenario I have depicted is utterly improbable.  

[16]      That brings me to the evidence of the accused. He was a particularly poor witness who experienced great difficulty in cross-examination explaining his conduct and decision-making against the version that he had put up. He avoided answering questions on a number of occasions and had no answer on others. His difficulties were compounded by two further aspects: first, his friend, Mr Matt Karba, testified that on the Sunday following the incident the accused had told him that he was suspected of having raped a person and that if anyone asked Karba about the accused’s cap – which Karba identified as the cap found at GF’s house – Karba should say that he knows nothing about it; secondly, the accused made a warning statement after his arrest in which he denied having raped the complainant and falsely stated that he had spent ‘the whole time’ with Karba, a fact Karba stated to be untrue and which the accused conceded was untrue. His explanations for both of these aspects was unconvincing, to say the least, and has a negative impact on his credibility.

[17]     Apart from the poor quality of the accused’s evidence, his version, to put it bluntly, is ludicrous. He would have the court believe that when he, a complete stranger to the complainant, entered her house in pitch darkness, she asked him for money, he agreed to donate money to her, a child he had never seen before, that she suggested that they have sexual intercourse and initiated the sexual contact that followed and that he had returned a week later to give her his entire weekly wage (of between R500 and R600), despite his financial obligations to his parents and children.

[18]      This version is so improbable that it can be rejected, on its own, as not being reasonably possibly true. In contrast, once it is accepted that the complainant and the accused had sexual intercourse, not only the quality of the evidence given by the State witnesses but the probabilities too point overwhelmingly to the complainant having been raped. In other words, I find that the accused’s version is not reasonably possibly true and is rejected and that the evidence adduced by the State, which I accept, taken with the probabilities prove beyond reasonable doubt that the complainant did not consent to sexual intercourse with the accused.

[19]      I accordingly find the accused guilty of having raped the complainant who was 13 years old at the time.

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C Plasket

Judge of the High Court

 

APPEARANCES

For the State: Ms N Turner of the office of the Director of Public Prosecutions, Grahamstown

For the accused: Mr D Geldenhuys of the Grahamstown Justice Centre

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