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FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: SIMPHIWE BUSIKA

And

THE STATE

• Case No: CA 142/08

• High Court: EASTERN CAPE DIVISION

DATE HEARD: 01/12/08

DATE DELIVERED: 12/12/08

JUDGE(S): JONES J, PICKERING J, PLASKET J

LEGAL REPRESENTATIVES –

Appearances:

• for the Appellant(s): ADV: E. Theron

• for the Respondent(s): ADV: M. Moodley

Instructing attorneys:

• Appellant(s): LEGAL AID BOARD (P.E)

• Respondent(s): DIRECTOR OF PUBLIC PROSECUTION (P.E)

CASE INFORMATION -

1. Nature of proceedings : APPEAL

Not reportable

In the High Court of South Africa

Eastern Cape Division, Grahamstown Case No CC 24/2007

Case No CA 142/2008

In the matter between

SIMPHIWE BUSIKA Appellant

and

THE STATE Respondent

SUMMARY: Appeal – against conviction of rape – 9 year old complainant – single witness to the sexual assault – no misdirections or improper evaluation of the evidence – no basis for interfering with trial court’s findings – conviction confirmed.

Coram: JONES, PICKERING and PLASKET JJ

JUDGMENT

JONES J:

[1] This is an appeal to the full court against a conviction of rape by the regional magistrate, Port Elizabeth which was confirmed in the High Court, Port Elizabeth.

[2] On 6 September 2004 the appellant first appeared before the regional magistrate, Port Elizabeth, on a charge of rape. The complainant was 9 years old at the time of the rape and 11 years old at the time of the trial. On 14 February 2006, the magistrate convicted the appellant and, by reason of the complainant’s age and the possibility of a mandatory sentence of life imprisonment, committed him to the High Court for sentence in terms of section 52(1) of the Criminal Law Amendment Act No 105 of 1997. He was brought before Mhlantla J in the South Eastern Cape Local Division sitting in Port Elizabeth. She confirmed the regional magistrate’s conviction and imposed a sentence of 10 years’ imprisonment. The appellant applied for leave to appeal against the conviction only. The application was granted.

[3] The appeal was directed at the sufficiency of the evidence. The prosecution relied on the evidence of three witnesses: the complainant, who was a child and a single witness to some of the material elements of the offence; the child’s mother, who testified that her undergarments were blood stained; and the child’s father, who testified to a report by the child that she had been raped by the appellant. The defence also led three witnesses: the appellant, who alleged an alibi; a child, who was allegedly present at his home that morning, to give supporting evidence of his denial of any complicity; and the medical officer, who testified about the results of his examination of the complainant.

[4] The appellant lived nearby the complainant’s home. She and her family knew him reasonably well. He was 41 years old. He was under a disability, having lost an arm, and he supplemented his income from a pension by hiring out a bicycle for the local children to ride. The rape allegedly occurred at his home at about 11h00 on the morning of 4 September 2004, when the child was 9 years old. According to her, she had been riding the bicycle after another child, Zianda (perhaps more properly Ziyanda), had borrowed it. When she finished she left it at the gate. The appellant called to her to bring it up to the house, and when she did so, he grabbed hold of her, forced her inside, removed her underwear, and raped her. He then threatened to kill her if she told anybody. She went home, washed her body, and hid her underwear under the bed because it was bloodstained. Her mother found it almost immediately. She questioned the child who said that she had injured herself while riding the bicycle. Her mother was not satisfied with this reply and called another woman to examine the child. This was done and the two women continued to question her, but she would not tell them what happened. Eventually the child’s father was called. He sent the women away and spoke to the child alone. She then came out with the story that she had been raped by the appellant. Her father went off to confront him, he denied the allegation, and he was thereafter apparently assaulted by members of the community. He was in due course arrested by the police.

[5] The appellant’s version was that he had not been at home that morning. He had gone to a traditional ceremony where a goat was slaughtered by a family in another neighbourhood. He had not seen the complainant. On his return he was confronted by the complainant’s father who accused him of raping the child, which he denied. He called a young girl as a supporting witness, who contradicted the complainant’s statement that she had returned the bicycle to the appellant. According to her, the appellant had not been at home. The bicycle had been in her care, and was taken out by a girl called Zianda. It was eventually brought back that morning by two small boys. The third defence witness for the defence was the doctor, whose evidence described the complainant’s injuries and took the defence case no further.

[6] The trial magistrate was faced with a choice between two conflicting versions, and was required to make an evaluation of the oral evidence and an estimate of the credibility of the witnesses in order to determine whether the State had discharged its onus. He analysed the evidence led by both the prosecution and the defence thoroughly, and came to the conclusion

• that there was proper satisfaction of the cautionary rule applicable to a child witness who was also a single witness to a sexual assault;

• that there was support for the complainant’s version and guarantees for its trustworthiness and reliability to be found in the other evidence and the probabilities of the case;

• that there were ‘problems’ with the defence version’s trustworthiness and reliability; and

• that he rejected the defence evidence as false and found the case against the appellant proved beyond reasonable doubt.

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, 655; Rex v Dhlumayo 1948 (2) SA 677 (A) 705; S v Francis 1991 (1) SACR 198 (A) 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.

[7] Ms Theron le Roux, for the appellant, directed her attack on the magistrate’s findings of credibility to one specific issue – the evidence of the complainant’s conduct afterwards in saying that she had injured herself on the bicycle instead of reporting the rape to her mother immediately and spontaneously, and in only subsequently reporting it to her father. Her argument was that this defect in the prosecution evidence goes to the root of the matter and was destructive of the State case. In my view, counsel’s criticisms indeed need to be addressed. But they are not sound. They must be looked at in the context of the indisputable facts. The most important of these is that the child had certainly been raped. Her untruth to her mother, that she had injured herself while riding a bicycle, must be evaluated in that light, and not exclusively looked upon as the flawed evidence of a single witness who failed the test of being clear and satisfactory in every material respect laid down in R v Mokoena 1932 OPD 79, 80, to which the magistrate referred in his judgment. The cautionary rule of practice laid down by the Mokoena case applies to those portions of the evidence of a witness which stand alone. The complainant is the only witness who can give direct evidence (a) of the rape and (b) the identity of the person who did the rape. But on the issue of the rape, her evidence does not stand alone. The medical evidence is of vital importance. Medical opinion does not exclude as a somewhat remote possibility that a child might in theory suffer injury to her genital area as a result of riding a bicycle. But it excluded beyond reasonable doubt that this child sustained these injuries in that manner. This child sustained an injury which caused her to bleed to the extent of leaving her underwear visibly bloodstained. She also sustained an injury in the form of bruising (not an open, bleeding wound) to the labia minora. If that injury had been caused by riding a bicycle, the medical evidence is that it would have been associated with visible injury to the labia majora, which is external to and protects the labia minora in a child of this age. There was no such injury. In the absence of anything else suggested by the evidence, sexual assault is the only reasonable and non-speculative explanation for both the bruising to the labia minora and the bloodstained underwear. The fact of the matter is, therefore, that the child had in fact just been raped in the legal sense – penetration beyond the labia majora – but she did not want to say so for any of the reasons that might inhibit a little girl in such a case. Her mother found her underwear under the bed. When faced with the ordeal of challenge, the child did not tell the truth. She was then faced with an even greater ordeal: of being confronted by her mother and some other woman, who both questioned her repeatedly after ‘examining’ her. She persisted in the untruth that she had hurt herself on the bicycle. It is no wonder that in her state of shattered innocence it was only after her father’s arrival, after the women were sent outside, and after things had calmed down, that she came out with what is beyond question the truth – that she had been raped. At this point, where I am concerned primarily with the fact of the rape and not with the identity of the rapist, it is nevertheless of importance, in the process of assessing the effect of the child’s untrue statement, to bear in mind her explanation that she had been threatened by the rapist. In all the circumstances, her failure to tell her mother spontaneously and at an earlier stage that she had been raped does not make her evidence that she was raped incredible or unacceptable. On the contrary, her initial reluctance was in my view understandable and explicable. There is no suggestion that her father forced her to say what she said, or suggested to her what to say about the nature of the act that had been done to her. My conclusion is that the major criticism levelled by counsel at this portion of the evidence of the complainant falls to the ground when it is subjected to proper scrutiny. Her evidence in court that she had been raped was corroborated. It was unquestionably the truth and was properly accepted as the truth. Her previous inconsistent statement that she got injured while riding on the bicycle does not derogate from the State case that this was rape.

[8] The fact of the rape is therefore proved beyond reasonable doubt by the credible, though not flawless, evidence by the complainant to that effect, corroborated by the independent medical opinion of the doctor, and the doctor’s and mother’s evidence of the blood on her underwear. The magistrate correctly confined the rest of his inquiry to whether the identity of the perpetrator had been proved.

[9] The complainant implicates the appellant. What must have been foremost in the magistrate’s mind was the possibility that she might be wrong in her identification although she gave unquestionably acceptable evidence that she was raped. Her report to her father that it was the appellant who raped her is not corroboration of her implication. Of importance arising out of the reports that she made, however, was her failure to implicate the appellant at the very first opportunity. It exposes her identification to the criticism that it is either unreliable or untrue. That was the second part of Ms Theron le Roux’s argument. It is one of the important features to be considered in determining whether the appellant was properly convicted. The magistrate did not take the view that the delay here precluded a conviction. He did not view it as an isolated, single consideration upon which the whole case turned. He correctly regarded her initial failure to name the appellant as part of the whole scenario giving rise to the child’s statement about hurting herself on the bicycle. In my view the reasons for understanding and explaining what happened and why it happened apply to the incident as a whole, and have equal bearing on the rape issue and identification. In weighing up the reliability and trustworthiness of the complainant’s evidence the magistrate properly did not leave out of consideration that this child had just been molested in a way in which a small child can barely be capable of understanding, that she had been threatened not to reveal what had been done to her, that she must have been in a state of shock and fear, and that she had been subjected to unwelcome interrogation. In these circumstances, it is not proper for us to conclude that the magistrate should have regarded her failure to name the appellant when she was first confronted by her mother as a strong indication of unreliability or inveracity. The magistrate considered that it did not prevent him from attaching weight to her identification of the appellant. He did not regard himself as required by it to seek corroboration in the legal sense of corroboration which itself implicated the appellant before he could rely on her identification. In my view, it cannot be said that he was wrong.

[10] There is no evidence that the complainant’s father suggested to the child that she should implicate the appellant. The magistrate applied his mind specifically to the possible pitfalls of accepting a child’s evidence because of suggestibility, egocentricity, fantasy, or an inability to understand the importance of truthful testimony. In recording his observations of her and evaluating her evidence he found her to be coherent, consistent, a child who had good, detailed and logical recall, and one not too young to understand her duty to tell the truth. He found that her evidence was consistent with the underlying probabilities of this case, such as, for example, her version of the role played by her use of the bicycle that morning. He was aware that he was dealing with the evidence of a child witness who gave single witness evidence of identification. Significantly, there is no room here for a genuine mistake in identification. The child knew the appellant too well for that, and the identity of a man who had lost an arm, and the background of borrowing the bicycle from him, exclude mistake as a reasonable possibility. The complainant implicated the appellant deliberately and not mistakenly. If he is innocent, she was being deliberately untruthful, either off her own bat or because she had been put up to it. Cross-examination did not uncover any hint of deliberate deception, or of a child capable of cunning or guile. Nobody is able to give any reason for her or her family to implicate the appellant falsely. The improbability that this little child would do so for no reason, or for no known reason, is great. When this improbability is looked at in conjunction with the ‘problems’ or weaknesses in the defence evidence – for example, (a) the appellant was not able to give even the name or address of the family whose traditional ceremony he attended; (b) his so-called alibi did not on his own evidence preclude him from being at his house at the time when the complainant says that he raped her; and (c) his supporting witness gave contradictory evidence about the complainant’s presence at or near the appellant’s house that morning and about her use of the bicycle which strongly suggests fabrication – it is difficult to fault the magistrate’s conclusion that the appellant’s version was incredible and not reasonably possible in the light of the proved facts and the probabilities of the case.

[11] Ms Theron le Roux was not able to suggest that the magistrate misdirected himself, whether in this approach to the single evidence of a child witness making a complaint of a sexual nature, or in other material respects. She was not able to demonstrate, with reference to specific passages in the record of the evidence, that the magistrate’s evaluation of the evidence before him was one-sided, or unfair, or biased against the appellant, or that it was clearly wrong for any other reason. The magistrate does not appear to have taken short cuts, or made unjustified assumptions, or tried to brush aside weaknesses in the prosecution case. In all the circumstances, the magistrate’s reasons for conviction survive the scrutiny of a court of appeal that is duty-bound to examine the record of evidence to ensure that an appellant is given the re-hearing to which he is entitled on appeal. In the same breath, the very same scrutiny reveals that the court of appeal has no justification in going behind the magistrate’s findings of fact. We cannot be convinced on appeal that his conclusions on fact and credibility were wrong.

[12] In the result, the appeal is dismissed.

RJW JONES

Judge of the High Court

4 December 2008

PICKERING J I agree.

J PICKERING

Judge of the High Court

PLASKET J I agree.

CM PLASKET

Judge of the High Court

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