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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

(GAUTENG DIVISION, PRETORIA)

 

                                                                                           Case number:  A 25/2015

                                                                                              Date:

 

In the matter between:

 

DOCTOR NXUMALO                                                                                     APPELLANT

 

Versus

 

THE STATE                                                                                                     RESPONDENT

 

JUDGMENT

 

KHWINANA AJ:

 

INTRODUCTION

[1]        On 12^th May 2011, the appellant was convicted in the Regional Court held at Evander on a charge of Rape and was sentenced to life imprisonment.

 

[2]        The appellant appeals against the conviction and sentence in terms of section 10 of the Judicial Matters Amendment Act 42 of 2013.

 

[3]        The appellant denied having committed the offence and pleaded consensual intercourse with the complainant. The appellant contended that the complainant misled him that she was an adult.

 

[4]        The court relied on the evidence of the complainant who was a single witness. The court said the evidence will be approached with caution.

 

BACKGROUND FACTS

[5]        The first state witness Begamagogo Eric Thusini testified that he is a detective in the South African Police Service and he has 16 years of experience and is stationed at Leslie Mpumalanga. He testified that on the 22^nd November 2008 he was on duty with colleagues doing a stop and search to prevent crime within the community. He testified that he noticed the appellant with a young girl and his colleagues and him requested to search the appellant. He testified that the appellant submitted to the search. 

 

[6]        The appellant whilst being searched, the complainant ran to the police into their vehicle. A knife was found in the pocket of the appellant and the appellant wrestled with him. He had to summon for help from the other officers. In the process he was bitten by the appellant on his hand. He testified that the appellant attempted to ran away but he was able to trip him and he fell. He subdued him with the assistance of the other police officers.

 

[7]        The other officers informed the appellant that he was under arrest for rape of the young girl as she made a report to them. The appellant attempted to run the second time with handcuffs on, he threw a stick between his legs as he was handcuff and he fell thus the appellant was arrested again. Complainant had explained that she had been at a party where the people at the party became violent and she was forced to leave.

[8]        On her way home which was not far she was accosted by the appellant who took her by force, closed her mouth and took her to the nearest forest and raped her.  Complainant was taken home and got hold of her mother. He testified that the appellant was taken to the police station. The appellant was not assaulted. He testified that he noticed distress and crying on the complainant. He received medical attention for the wound sustained as a result of the appellant biting him.

 

[9]        The complainant testified that she was fourteen years of age doing grade 7 at [….]. On the day in question it was a Saturday and her mother had been asked by a friend to release her to participate in a dance. She went to the dance. She stayed there until the people who had been drinking alcohol became violent and she decided to leave the place. She was thirteen years at the time and did not consume alcohol. She testified that whilst there a young man approached. He told her that the appellant was calling her. She did not know the appellant and she did go to him as requested.

 

[10]      Whilst at the party a fight broke and she felt unsafe and decided to leave. On her way she was approached by the appellant and a person who had told her that the appellant was calling her. She says the pair was following her. The appellant asked her where she was headed to, she says she said home. The appellant insisted to walk her home and threatened to kill her, shoot her or stab her with a knife if she refuses. Whilst walking with the appellant she saw a lady who was friends with her mother and she ran to her and the appellant threatened this lady and told her to let go of her.

 

[11]      The woman got scared as she was threatened that she will be assaulted with an open hand and the woman promised the appellant that she was not going to alert any people again. The friend to the appellant parted ways with them. She requested the appellant to walk in a certain direction with the intention to alert her aunt that appellant was taking her by force. The appellant would not comply then when she suggested to him that they must go to his place with the hope that she would be seen by his parents’ but she says appellant refused.

 

[12]      Whilst walking they ended up in a forest where the appellant asked her to undress and she obliged due to fear. Appellant put his penis inside her vagina and requested her to lie down. During cross examination she testified that she was penetrated in her anus. In other words the appellant raped her in her vagina and the second time he told her to turn around and he penetrated her anus. The appellant told her he enjoyed what he did to her and wanted to take her home to have further sexual intercourse with her.

 

[13]      She became worried that the appellant would cause his friend to also rape her when the appellant informed her that he must collect R 500.00 from a friend. Whilst walking she was fortunate that they bumped against the police. She ran to the police and relayed the incident. She testified that the appellant attempted to run away and the police assaulted him. She testified that the police took her home to her mother whom when told about the incident and she cried.

 

[14]      The complainant was taken to the police station for taking down her statement and then to the hospital for medical examination. She was given an injection by the doctor. During the rape the appellant did not put on a condom and she was unable to say if he ejaculated on her as this was her first experience.

 

[15]      A medical report was handed in by the state and the attorney for the appellant Mr Pilusa did not object. According to the report examination on the complainant revealed a tear at six o’clock, bleeding on the hymen, superficial abrasions at five, six and seven o’clock. The tears were fresh especially the tears at three, five, and six o’clock. The hymen presented bruising at six to eight o’clock and she also noticed discharge which was semen like. The report concluded is that there was forceful penetration.

 

[16]      Furthermore, the anus of the complainant upon examination showed that the skin surrounding the orifice had cracks at twelve, seven, one, five, six and nine o’clock. Moreover, the opening of the anus was swollen. She concluded that her conclusion was that there was possibility of forceful penetration of the anus.

 

[17]      Counsel for the appellant during cross examination put it to the complainant that the sexual intercourse was consensual and it took place at the accused’s parental place. This she denied. It was further put to her that she told the appellant that she was 18 years and not 14 years. She denied this too. She was questioned about failure to mention the anal penetration. She replied that she had forgotten about it and she was afraid to testify how he raped her at the back. She further told the court that she mentioned it to the medical practitioner and in her statement.

 

[18]      Ms P[....] Z[....] being the mother to the complainant was then called as a witness. She testified that on the 22^nd November 2008 she was approached by a friend who requested that her daughter attend a dance at her place. She testified that the friend was not staying far from her place. She testified that the complainant left her parental place without any complainants. She received a report from complainant that she was raped on the 23^rd November.  When it was put to her during cross examination that it was consensual intercourse she said she knew nothing about that.

 

[19]      The state proceeded to call Joseph Mokoena who testified about count three. I will not deal with the said evidence as the appellant has not appealed against same. The state closed its case.

 

[20]      The appellant testified that he knows the police officer detective Thusini for almost ten years. He testified that he does not harbour any grudges against Mr Thusini. On the 22^nd November and had been sent to fetch money at Lesile. He asked a friend to accompany him but could not find the friend. Jabulani is the one who accompanied him.

 

[21]      He testified that at the party he met the complainant who said it is long that I have been waiting for you. He told the complainant that there was a funeral at his home and he was not lying. He testified that the complainant told him not to leave as she wanted to see him.

 

[22]      Ten minutes later he told the complainant it was late they needed to leave. The complainant insisted that they go to his place of residence. They then walked together and they parted ways with Jabulani. They proceeded to his home where they had consensual intercourse and thereafter they left.

 

[23]      Whilst they were walking they were approached by a police officer who took out a firearm.  The police requested to search him and found R150.00 and a cellphone. He was told a warrant of arrest was out for him as he had failed to appear in court, he told the police he did not know of about that. The police assaulted him and officer Thusini was talking to the complainant.

 

[24]      In a nutshell his testimony is that the intercourse was with consent of the complainant. Furthermore complainant told him that the complainant was eighteen years old which he believed.

 

[25]      During cross examination the appellant testified that he did not insert his penis into complainant’s anus. Furthermore, he told the trial court that it was not the first time that he had intercourse with the complainant and on the day in question it was the fourth time.

 

[26]      The appellant conceded to having sexual intercourse with a minor however pleads consent and that he was misled to believe that the complainant was 18 years old.

 

[27]      The appellant submitted that the learned trial magistrate misdirected herself in that she failed to have sufficient regard to the two cautionary rules applicable in this case and has failed to apply them with the degree of attention to detail demanded by particular circumstances of this case.

 

[28]      The appellant submitted that the learned magistrate did not pay sufficient heed to the caveat set out in R v Manda [1], where the following was held:

‘The imaginativeness and suggestibility of children are only two of a number of elements that require their evidence to be scrutinised with care amounting, perhaps, to suspicion… The trial court must fully appreciate the dangers inherent in the acceptance of such evidence and where there is reason to suppose that such appreciation was absent a court of appeal may hold that the conviction should not be sustained.’

The appellant submitted that in S v Hanekom[2] the court laid down general guidelines which are of assistance when applying cautionary rules:-

(a)  A court will articulate the warning in the judgment, and also the reasons for the need for caution in general, and with reference to the particular circumstances of the case.

(b)  A court will examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material aspects.

(c)  Although corroboration is not a prerequisite for a conviction, a court will sometimes, in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt.

(d)  Failing corroboration, a court will look for some feature in the evidence which gives the implication by a single witness, enough of a hallmark of trustworthiness to reduce, substantially, the risk of a wrong reliance upon her evidence. See Sv Artman[3].

 

[29]      The appellant submits that the discrepancy between whether the complainant was distressed, held by appellant or walking freely is material. The fact that the state failed to call the woman that the complainant ran to whilst being held against her will.

 

[30]      The second point is the reaction of the complainant when she saw the police is being compared with her reaction towards the friend of her mother.  The third point is that according to the appellant he had a relationship with the complainant thus she knew there was a funeral at his home and that a police officer was a member of the appellant’s family.

 

[31]      The last point is that a medical report was submitted without the medical practitioner being called to explain it.   

 

[32]      The respondent submitted that the appellant was dishonest and attempting to mislead the court when pretending that he did not know his birthday, was told and believed that he was born in 1991 and was unable to explain why he believed that he was 23 at the time of giving evidence.

That court aquo carefully scrutinised the victim’s evidence as she was both young and a single witness and the court carefully observed the demeanor of the witness and sought for objective corroboration for her version.

 

[33]      The onus of proof is discharged by the state if the evidence establishes the guilt of the accused beyond reasonable doubt. The appellant’s version can only be rejected if the court is satisfied that it is false beyond doubt, see Shusha v S [4].

 

[34]      In S v Van der Meyden[5] Nugent J held “These are not separate and independent test, but the expression of same test when viewed from the opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true”

 

 

APPLICATION OF THE LAW TO THE FACTS

 

[35]      The court has to consider the evidence in totality in order to decide the guilt of the appellant. It is so that the complainant is a single witness[6] in so far as the rape count is concerned. It is trite law that evidence of a single witness must be taken with caution. The complainant was at a very young age however her evidence has been corroborated by the police officer who arrested the appellant as well as the mother to the complainant. In S v Chabalala[7] the following of relevance was held: “ The correct approach to evaluating evidence is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weighs so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”

 

[36]      The complainant remained firm in her testimony and was not shaken by cross examination. She was a good witness and her evidence was corroborated by other witnesses. The mother to the complainant confirmed that her daughter had been invited for a dance. The mother to the complainant is the one who had agreed to the complainant attending this event. She confirmed that the area was not far from her place of residence. She did not know the appellant despite that he says he has been a boyfriend of the complainant for a period of a month.

 

[37]      The complainant was consistent in her testimony that the rape took place in the forest. This was confirmed by the police office as well as the mother to the complainant. She was consistent about the so-called friend that was with the appellant. The said friend was not called as a witness by the appellant to corroborate his version that the complainant called her and not the other way around. In S v Teixera[8] it was held that “the failure of the state to call a witness to testify, place the court in the position to draw a negative inference from the state’s failure to do so. The court may infer that the witness would not have corroborated the version of the complainant.” The court may however draw the same inference from the defence for failure to call his friend Jabulani.

 

[38]      The version of the accused person must be reasonably possibly true before it can be accepted by the court. In casu the appellant in his plea explanation he denied the allegations. When his version was put to the complainant it was said he had sexual intercourse with the complainant by consent. He claimed that he took the complainant to his homestead where there was a funeral. He says that he never called the complainant despite what his attorney put to the complainant. It was put to the complainant that there was anal penetration, however when the appellant testified he said even the attorney knew this was a concocted story by the doctor and the complainant. The appellant viewed the complainant as a young girl which contradicts him saying she was 18 years.

 

[39]      At no stage did the complainant contradict herself she only left out evidence about anal penetration but testified about it during cross examination she gave reasons why. It is evident from the medical report that it was her first sexual encounter. The appellant’s attorney during the trial conceded to the medical report[9] as well as the affidavit being taken as an exhibit without same being questioned. The appellant cannot therefore turn around and say questions ought to have been put whereas he had opportune time to do so and he did not take it. The witness for the state appeared several times in court prior the medical report being submitted as evidence. It is understandable that a thirteen year old after experiencing such violent crime of being penetrated from her vagina would forget anal penetration.

 

[40]      The complainant upon an opportunity being presented to her of help she spoke up to the police. She did not waste time she explained to the police officer how the appellant raped her. She was taken to her home again there and then she reiterates the ordeal to her mother. She was a very clever little girl despite being violated in that manner she spoke immediately and no medical evidence was lost.     

 

[41]      In Y v S [10]Judge Molemela in her dissenting judgement said “The minor contradictions do not, in the context of this matter, serve to discredit complainant as a witness, nor do they render her evidence unsatisfactory. While they constitute shortcomings in her evidence, they do not impinge on her honesty. A feature of her evidence that in my view, strongly attest to her honesty and reliability is that even in the heat of cross examination. She did not try to portray the applicant as a monster. She openly confessed her love for both her mother and the applicant and acknowledged that she missed them.”

 

 [42]     In casu the complainant despite that she had been raped by the appellant she still told the truth about the police who assisted her yet assaulted the appellant.  The strange thing in this matter is that appellant attempted to escape and assaulted a police officer of those counts he is not appealing against whereas one would ask why run away if you have not committed the offence. A negative inference may be drawn from the appellant’s conduct on the night in question.  On evaluating the evidence we are satisfied that the state succeeded in proving the case against the appellant beyond reasonable doubt, and therefore the appeal against the conviction cannot succeed. There is no indication that the trial court misdirected itself on the facts or the law. The learned Magistrate did not err in finding the appellant guilt as charged.

 

 

SENTENCE

 

[43]      The appellant submitted that he is 33 years of age, single with one child. He has no pending cases but has previous convictions ranging from assault, robbery and housebreaking. The latest conviction dated 2003 and in casu he was arrested 29 months prior trial to-date. He is an orphan who was raised by his grandmother who passed on then left with his brother who also passed and had to stay with relatives.

 

[44]      The respondent in aggravation submitted that the appellant does not have insight in his behaviour and does not show signs of remorse. The prosecution referred to the probation officers’ report which says “Society needs to be protected against the appellant.

 

[45]      It is trite law that sentencing falls within the discretion of the trial court and should only be interfered with if there was a misdirection on the part of the magistrate or if it is shockingly inappropriate, see S v Rabie[11].

 

[46]     In determining the sentence, the court has to look at what has become known as the basic triad which is namely the offence, offender and the interest of the society which was discussed in S v Zinn[12]

 

[47]      The appellant was 33 years single with one child whose mum passed. He has no pending cases and was arrested on the 22/11/2008 to-date which amounts to 30 months in custody. The appellant admitted his previous convictions. The appellant was said to have lost both parents which fact contributed to his behaviour.

 

[48]      The appellant was found guilty of two counts of rape which falls within Part 1 of schedule 2 of the prescribed sentences. The court aquo had to impose a life imprisonment unless the appellant shows substantial and compelling factors that warrant deviation from the prescribed sentence. The court could not take into account the awaiting trial period spent as discussed in S v M[13] “Since life sentence indeterminate time spend in custody awaiting trial not capable of being subtracted from sentence and thus not substantial and compelling circumstances.”

[49]      The probation officer consulted the complainant in this matter wherein she said the incident has caused her irreversible damage in her life. She said she lost virginity in a very painful manner. She was said to exhibit signs of trauma, hallucination, withdrawal, anxiety, insomnia’. The complainant said she would like to participate in a counselling session to assist her.

 

[50]      The court a quo took into account the injuries sustained and the trauma experienced by the complainant and it found that no substantial and compelling factors existed to deviate from the prescribed sentence.

 

[51]      The sentence herein is not shocking and inappropriate. The learned magistrate did not misdirect herself.

 

[52]      In the light of all the facts the appeal on conviction and sentence should be dismissed.

 

[53]      The following order is made:

            The appeal against conviction and sentence is dismissed.

 

 

 

E N B KHWINANA

ACTING JUDGE OF THE HIGH COURT

 

I agree                                                                      

D MAKHOBA

JUDGE OF THE HIGH COURT

 

 

 

DATE OF HEARING                                 09 NOVEMBER 2020

DATE OF JUDGMENT:                            23 DECEMBER 2020

 

ATTORNEY FOR APPELLANT:             ADV F. VAN AS

                                                                    PRETORIA JUSTICE CENTRE

 

ATTORNEY FOR RESPONDENT:          ADV. ANNALIE COETZEE

                                                                       

 

 

 

 

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