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Damana v S (CA & R 213/18) [2020] ZAECGHC 78 (7 July 2020)

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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.:  CA & R 213/18

                                                                                                Date Heard: 11 March 2020

                                                                                                Date Delivered:  7 July 2020

In the matter between:

SABELO DAMANA                                                                                     Appellant

and

THE STATE                                                                                                 Respondent

JUDGMENT

RAWJEE AJ:

[1]           The appellant, a 32 year old male, was charged with the rape of a 6 year old child (first charge) and a 9 year old child (second charge). The two children were siblings. He was acquitted on the charge of rape of the 6 year old child but was convicted on the charge of rape of the 9 year old child in the Regional Court, Port Elizabeth. 

[2]           This is an appeal against the conviction only on the second charge of rape of the 9 year old child.

[3]           The State relied on the evidence of three witnesses - the complainant, who at the time of the trial was 15 years old and a single witness to material elements of the offence, a forensic nurse, Mr Fezile Ntini, who had examined the complainant and completed the medical form (“J88”) and the complainant’s mother who was the first person she reported the rape to.  The defence relied on the evidence of the appellant and his aunt whom he lived with.

[4]           In 2009, on a school day, the complainant, a Grade 4 learner, was returning from school.  She saw her father, the owner of a grass cutting business, cutting the grass in a neighbouring yard on her way home.  The appellant, a cousin of the complainant, assisted her father in his grass cutting business.  On her arrival at home she went to her bedroom to change from her school uniform (a tunic).  The appellant entered her bedroom, pushed her onto the bed, took off his pants, pushed her underwear to the side and raped her.  She was crying.  Someone went pass her bedroom window.  He stopped raping her, got dressed and went out.   She was emotional and did not want to see anyone or talk to anyone.  She stayed in her own room and covered herself.  She wanted to forget that she was raped and thought she could do this by not talking about it. She never had a boyfriend at the time of the incident and has still not had a boyfriend.  In 2015, her younger sister told her about the appellant raping her she reported it to her mother as her sister was crying while reporting the incident to her.  She saw the stress this caused to her mother and did not want to add to her stress by telling her about her rape.  The familial relationship her family shared with the appellant was not lost on her.  In fact, the incident with her younger sister was initially dealt with in a family meeting where the accused’s aunt with whom he lived and who was making payments for the younger sister’s sessions with the psychologist and was never reported to the SAPS at the time.  The complainant reported the rape for the first time to her mother in 2016 after her mother informed her and her younger sister that their cousin was raped by the appellant when she was 8 years old.    When asked by her mother if she was ever raped she initially said no.  She could not look her mother in her eyes to tell her she was also raped by the appellant.  She therefore resorted to writing about her rape in a letter which she placed in the refrigerator.  In her letter she asked her mother not to tell anyone as she wanted it to “remain inside the house”. Her reason for disclosing the traumatic incident at this stage was because she wanted to assure her mother she would not end up like her cousin who had stopped studying and started taking drugs.  That very evening, her mother went to her bedroom and asked her about the letter.  They communicated by writing notes to each other.  The complainant was then taken to the police station and then to the Thuthuzela Care Centre situated at Dora Nginza Hospital for a medical examination. 

[5]           The complainant’s medical records (“J88”) confirmed a ruptured hymen which was ragged and totally eroded. The nursing sister, Mr Fezile Ntini, who conducted the physical examination and completed the complainant’s J88 testified at the criminal trial and confirmed his findings of penetration based on the hymen losing its shape and becoming ragged.

[6]           The complainant’s version was corroborated by the evidence of her mother.  Mr Geldenhuys, acting on behalf of the appellant, correctly submitted that the primary contradiction in the evidence between the mother and the complainant was the time during which the letter was placed in the refrigerator.  According to the mother, it was the next day and according to the complainant it could have been placed there a week later.    Mr Geldenhuys furthermore correctly conceded that the letter could have been placed in the refrigerator sooner than “one week later” as testified by the complainant.  This is not a material contradiction in the evidence.

[7]           The appellant testified that the complainant was family, that he frequently visited their home and that he worked for the complainant’s father in his grass cutting business.  He simply denied raping the complainant.  However, he admitted that he was helping the complainant’s father in his grass cutting business on that day and that he therefore placed himself at the scene.   The appellant’s aunt whom he lived with confirmed the complainant’s mother’s evidence insofar as it related to the meeting of the family regarding the incident of the complainant’s younger sister and the payment of monies to the sessions with the psychologist.  She was also evasive as to why the complainant would lie about being raped by the appellant.    

[8]           The trial court was left with two conflicting versions and was required to evaluate the evidence and estimate the credibility of witnesses to establish whether the State had discharged its onus.  The magistrate analysed the evidence thoroughly and came to the conclusion that there was proper satisfaction of the cautionary rule applicable to a child witness who is also a single witness to the rape; that there was support for the complainant’s version in that the complainant’s mother’s evidence corroborated that of the complainant; that everyone who testified knew about the rape of K[…] and the letter, including the appellant’s aunt who testified on his behalf, and that the letter was therefore not a fabrication; that the J88 report and the evidence of Mr Ntini further supported the complainant’s version.  The magistrate further found that the accused was not an impressive witness; he was evasive at times especially during cross examination as to whether he indeed raped the complainant and whether raping the complainant was wrong, he first denied watching pornographic films and later admitted to it and that his version was just a bare denial despite placing himself at the scene and that his aunt’s evidence was simply that he could not have done this and she could not reply as to why the two children would lie about the rapes. 

[9]           The trial court furthermore had specific regard to the delay in reporting the rape and found that it was not unreasonable.  The court had regard to S v Connick and Another 2007 (2) SACR 115 (SCA) where the rape happened 19 years before charges were laid.  The complainant, similar to this matter, attempted to bury her ordeal in the back of her mind.  The trial court found her explanation for the delay to be reasonable and furthermore relied on the rape of the complainant being corroborated by medical evidence as detailed above.

[10]        The general rule is that findings of fact and credibility such as these are presumed to be correct and will be upheld on appeal. To avoid that consequence, it is necessary for an appellant to convince the court of appeal either that the trial court materially misdirected itself in making its findings of fact, or that a reading of the record of evidence demonstrates that the trial court's evaluation of the oral evidence was clearly insupportable (Kunz v Swart  1924 AD 618 at 655; Rex v Dhlumayo 1948 (2) SA 677 (A) at 705; S v Francis 1991 (1) SACR 198 (A) at 204e–f). A reasonable doubt about the correctness of the trial judge's conclusions of fact will not be sufficient to depart from them on appeal because, bearing in mind the advantage of the trial court in seeing, hearing and appraising the witnesses, it is only in exceptional circumstances that a court of appeal will interfere with the trial court's estimation of the oral evidence.

[11]        The appellant’s attack on the findings of the trial court are primarily that she failed to find that the delay in the complainant’s reporting of the incident could not have resulted in a conviction and that the evidence as to when the letter was placed in the refrigerator should have led to a negative credibility finding by the trial court.

[12]        Mr Geldenhuys could not point to any misdirections of the trial court which resulted in the conviction of the appellant nor could he direct us to evidence that the trial court failed to apply the cautionary rule to a child and a single witness as to the rape.  He failed to refer to any portions of the record where her evaluation of the evidence was one-sided, bias, unfair or clearly wrong.

[13]        We are not convinced that the trial court’s findings on credibility or fact are wrong.

[14]        Accordingly I would make the following order:

The appeal is dismissed.

A RAWJEE

ACTING JUDGE OF THE HIGH COURT

It is so ordered.

_______________________

M MAKAULA

JUDGE OF THE HIGH COURT

Appearances:

For Appellant:           Adv Geldenhuys instructed by Legal Aid Centre, Grahamstown

For Respondent:      Adv Hendricks instructed by National Director of Public                                              Prosecutions, Grahamstown