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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case No: AR504/19

In the matter between:

SIBUSISO DERICK MHLONGO                                                              APPELLANT

and

THE STATE                                                                                                   RESPONDENT

ORDER

On appeal from the Regional Court, Eshowe:

The appeal against conviction and sentence is dismissed.

JUDGMENT

Chetty J (Lopes J concurring)

[1] The appellant was charged in the Regional Court, Eshowe of having raped the complainant on diverse occasions between 2016 and 2017. The complainant is referred to in this judgment by her forename, 'Nosipho', in order to protect her identity and in light of her being 11 years old at the time of the commission of the offences. The charge sheet was framed in terms of s 51, Schedule 2, Part 1 of the Criminal Law Amendment Act 105 of 1997 ('the Amendment Act') in terms of which the appellant was alerted to the applicability of life imprisonment in the event of his conviction as the complainant was under the age of 16. The appellant pleaded not guilty to the charge. He was legally represented at his trial. After considering the evidence before it, the trial court convicted the appellant as charged, and sentenced him to life imprisonment on 15 May 2018.

[2] The matter comes before this court as an automatic appeal in terms of s 309 of the Criminal Procedure Act 51 of 1977 ('the Act').

[3] The facts of the matter are succinctly captured in the judgment of the court a quo. In as much as this appeal lies against both conviction and sentence, it is necessary to briefly have regard to those facts. The complainant, Nosipho, testified with the assistance of an intermediary appointed by the court in terms of s 170A of the Act. When the matter came before this court on 19 February 2021, an order was issued adjourning the matter sine die with a direction that those representing the appellant "deal with the matter raised by the State regarding the appointment of an intermediary, Ms M.S. Zondi”. . It is contended on behalf of the appellant that the trial court irregularly appointed the intermediary in as much as she did not take the oath; her full details were not recorded, nor were her qualifications and it was not ascertained whether or not she had consulted with the complainant prior to her appointment. Counsel relied heavily on the decision in S v Booi 2005 (1) SACR 599 (8). That decision was departed from by Gorven J in S v Ndokwane 2012 (1) SACR 380 (KZP).

[4] In determining whether there was an irregularity in the appointment of the intermediary, the starting point is the provisions of s 170A(1) which states that: 'Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the biological or mental age of 18 years to undue mental stress or suffering if he or she testifies at such proceedings, the court may, subject to subsection (4) appoint a competent person as an intermediary in order to enable such witness to give his or her evidence through that intermediary.'

[5] The section provides protection for child witnesses, by shielding them from undue mental stress or secondary trauma. The Constitutional Court in Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development and Others 2009 (4) SA 222 (CC) recognised that a child witness  must  be protected from having to  endure  the  mental  anguish  of testifying  in the presence of a person accused. 'The best interests of the child' is the guiding principle in determining whether to appoint an intermediary.  Ngcobo J held at paragraph 108 that:

                      '. . .it must be accepted that a child complainant in a sexual offence who testifies without the assistance of an intermediary faces a high risk of exposure to undue mental stress or suffering. The object of s 170A(1) read together with s 170A(3) is precisely  to prevent this risk of exposure. It does this by making provision for a child to testify through  the intermediary ... '

[6] In Kerkhoff v Minister of Justice and Constitutional Development 2011 (2) SACR 109 (GNP) para [21] the point was emphasised that the enquiry to appoint an intermediary is not concerned with whether the child is competent to give evidence or whether the child's evidence is admissible, credible or reliable. Moreover, the procedure ensures that the trial court is in a better position to receive the evidence from a vulnerable witness in a manner where it is freely presented. In so doing, such evidence is more likely to be better understood by the court, enhancing the fairness of the trial.

[7] In considering the manner in which the intermediary was appointed, it bears noting that the application in terms of s170A(1)  was not opposed by the defence.  It is correct that the court proceeded to appoint Ms Zondi as an intermediary without receiving any evidence from her as to her qualifications or suitability to serve in that capacity, save for the recordal that she was a member of staff at the Magistrate's Court in Eshowe.   The grounds of irregularity contended for by the appellant fall to be dismissed as these concerns are adequately satisfied by the provisions of s 170A(4) which provides that:

'(4)(a) The Minister may by notice in the Gazette determine the persons or the category or class of persons who are competent to be appointed as intermediaries.

(b) An intermediary who is not in the full-time employment of the State shall be paid such travelling and subsistence and other allowances in respect of the services rendered by him or her as the Minister, with the concurrence of the Minister of Finance, may determine.

(5)(a) No oath, affirmation or admonition which has been administered through an intermediary in terms of section 165 shall be invalid and no evidence which has been presented through an intermediary shall be inadmissible solely on account of the fact that such intermediary was not competent to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), at the time when such oath, affirmation or admonition was administered or such evidence was presented.

(b) If in any proceedings it appears to a court that an oath, affirmation or admonition was administered or that evidence has been presented through an intermediary who was appointed in good faith but, at the time of such appointment, was not qualified to be appointed as an intermediary in terms of a regulation referred to in subsection (4) (a), the court must make a finding as to the validity of that oath, affirmation or admonition or the admissibility of that evidence, as the case may be, with due regard to- (i) the reason why the intermediary concerned was not qualified to be appointed as an intermediary, and the likelihood that the reason concerned will affect the reliability of the evidence so presented adversely; (ii) the mental stress or suffering which the witness, in respect of whom that intermediary was appointed, will be exposed to if that evidence is to be presented anew, whether by the witness in person or through another intermediary; and (iii) the likelihood that real and substantial justice will be impaired if that evidence is admitted.'

[8] In the result I am satisfied that no grounds exist, on record, that impugn the appointment of Ms Zondi as an intermediary or that any 'deficiency' in her appointment invalidates the testimony of the complainant.

[9] It was further contended that the failure of the trial court to admonish the child witness made her evidence less reliable, and infringed the provisions of section 164 of the Act, read with sections 162 and 163. In S v Raghubar 2013 (1) SACR 398 (SCA) the court considered the position where a child witness had not been admonished by the court to tell the truth. The Court referred to Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development (para 166) where Ngcobo J stated:

' (T)he evidence of a child who does not understand what it means to tell the truth is not reliable. It would undermine the accused's right to a fair trial were such evidence to be admitted. To my mind, it does not amount to a violation of s 28(2) to exclude the evidence of such a child. The risk of a conviction based on unreliable evidence is too great to permit a child who does not understand what it means to speak the truth to testify. This would indeed have serious consequences for the administration of justice.'

[10] In Raghubar the court held that if a child does not have the ability to distinguish between truth and untruth, the child is then not a competent witness "It is the duty of the presiding officer to satisfy himself or herself that the child can distinguish between truth and untruth. The court can also hear evidence as to the competence of the child to testify. Such evidence assists the court in deciding (a) whether the evidence of the child is to be admitted, and (b) the weight (value) to be attached to that evidence. . The maturity and understanding of the particular child must be considered by the presiding judicial officer, who must determine whether the child has sufficient intelligence to testify and a proper appreciation of the duty to speak the truth. The court may not merely accept assurances of competency   from   counsel.  The language   used in  all  three  sections   is  peremptor.y" Raghubar, para 5.

[11] Applying the dictum in Raghubar to the facts of the present case,  it  is apparent that the child witness was questioned by the court, through the assistance of the intermediary, with regard to her age; date of birth, the school that she attended and the grade she was presently in. The trial court continued to then ascertain whether she understood the difference been truth and lies, and the sanction that would follow if she failed to tell the truth. Neither the state nor the defence expressed any dissatisfaction with the questions posed by the presiding magistrate and the defence expressly remarked that it had "no issues with regard to her competency".

[12] Accordingly I am satisfied that the complainant was properly admonished to speak the truth and the trial court cannot be faulted for finding that she was competent to testfify in the proceedings. There was consequently no infringement of section 162-164 of the Act.

[13] I now turn to deal with the conviction of the appellant which the court a quo found to have been proven beyond reasonable doubt. I do not propose to repeat the evidence of the diverse occasions on which the complainant testified that she had been raped by the appellant in the home which she occupied with her grandmother and the appellant, who is her uncle. In order to accept the evidence of a child witness, a court must proceed with caution and must be satisfied as to the trustworthiness of the evidence. This would be dependent on factors like the 'child's power of observation, [their] power of recollection, and [their] power of narration on the specific matter to be testified. In each instance, the capacity of the particular child is to be investigated' (see: Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 10288). Bearing in mind these factors, the court a quo found that the evidence of the complainant, albeit as a single witness, was credible in as much as she provided details of each of the seven instances when she was raped by the appellant between 2016 and 2017. She was able to recount the circumstances that preceded each incident, and when she tried to scream, the appellant covered her mouth and after having completed having sexual intercourse with her, threatened that he would kill her entire family if she reported the incident to anyone.

[14] The court a quo was also alive to the fact that it is not expected that in order to secure a conviction, the evidence of a single witness must be impeccable in all respects. In this regard, the court a quo accepted that the complainant  was confused as to the exact dates when the various rapes were committed. This is not a factor which ought to have caused the court to reject her evidence, particularly as the incidents occurred over a period of two years. The court also found that Nosipho was a "bright witness", who gave evidence "in some detail ... even better than some other witnesses". It is well established that a court of appeal will only, under special circumstances, interfere with the findings made in a court of first instance, in particular where such failure to interfere will lead to a miscarriage of justice. In S v Francis 1991 (1) SACR 198 (A) at 204C-E the following was stated:

'This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (R v Dhlumayo and Another 1948 (2) SA 677 (A))… In the absence of any misdirection the trial Court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused No. 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its findings ... Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional  cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony…'

[15] In six of the seven incidents when the appellant unlawfully had sexual intercourse with the complainant, she was a single witness. That alone is no reason to reject her version. The safeguards taken into account include the particular anatomical description of the appellant's penis, which I considered below. However, in respect of one incident on 26 February 2017 her evidence is corroborated by the testimony of her older sister, Z[...] M[...], who was visiting her grandmother on the day. The complainant was taking a bath when the appellant entered the kitchen area in which she was, proceeding to cover her mouth to prevent her from screaming.  He then laid her down before penetrating her with his penis.  At this stage, Z[...] went looking for the complainant, whom she was told was having a bath. Z[...] waited outside the room where the complainant was, and heard a noise as if someone was crying. When Z[...] enquired if everything was in order, Nosipho informed her that she was waiting for the appellant to finish. The appellant was seen bending over and when he was asked by Z[...] what he was doing, he responded that he was fetching fire wood. Z[...] was suspicious that the appellant was hiding something from her. Suspecting that something was not right, Z[...] informed the complainant that she was giving her an ultimatum of three days to decide whether she wanted to confide in her as to what was happening. I disagree with the submission on behalf of the appellant that the disclosure by the complainant to her older sister was made under duress. There is no evidence to support this submission.

[16] As a result of the ultimatum, Nosipho confided in Z[...] that she had been raped by the appellant. without specifying the number of incidents on which this had happened or the precise dates. Having been placed in possession of this information, Z[...] confronted her grandmother and informed her that Nosipho had been raped by the appellant. In response, the grandmother asked Z[...] not to say anything as the appellant would kill her. On 28 February 2017 the police, accompanied by social workers, arrived at the school of the complainant after apparently being informed by Z[...] that the complainant had been raped. Nosipho was taken to the Amagwaza Hospital in Melmoth where she was examined by Dr Mdalose. The doctor gave detailed testimony in relation to her physical and gynaecological findings upon her examination of the complainant.  She concluded that she could not exclude the possibility that the complainant could have been raped. Significantly, the doctor testified of a 'foul-smelling discharge" which she observed while examining the complainant, which she believed could have been caused by a sexual transmitted infection.

[17] It is trite that a court must be cautious when considering the reliability of evidence provided by a single witness (see: R v Mokoena 193 2 OPD 79, S v Sauls & others 1981 (3) SA 172 (A) at 180 and Stevens v S [2005] 1 All SA 1 (SCA)). In S v J 1998 (2) SA 984 (SCA) it was held that when evaluating the evidence of an alleged victim of rape or  sexual assault,  a court need do no more than exercise the caution that is necessary when there is only one witness to the offence alleged. In addition, the evidence of the complainant must not be seen in isolation but rather as part of the mosaic of evidence before the court. In this regard, in assessing the evidence of the single witness, the trial court considered that in respect of one of the incidents, the version of the complainant is corroborated by her sister.  Arising from that interaction, the complainant made her first report to her sister. Crucially, under cross examination the complainant was asked whether she took note of any features of the appellant's penis during the various occasions on which she was raped. The complainant responded that she noticed "bumps" on his penis. When the appellant testified in his defence, he admitted that his penis contained a bulge, arising from certain beads inserted in his penis while he was incarcerated in prison in Durban.   He further conceded that one would only be able to notice this feature if one were in close proximity to him. When confronted with the likelihood that the complainant would not have been able to make this observation had she not been raped by him, the appellant resorted to the possibility that some of the young boys who had taken a bath in his presence could have told the complainant of this distinct feature on his penis.

[18] Against the weight of this evidence, the appellant offered a bare denial of the allegations against him and suggested that the complainant levelled false allegations against him because he was a strict disciplinarian at home, often enquiring why she returned late from school. These allegations were denied by the complainant, whom the appellant also accused of sometimes sleeping away from home.

[19] The trial court, in my view, correctly rejected the appellant's denials and concluded that his attempts to discredit the complainant as being someone who had sexual intercourse with another person as being a fabrication. Moreover, the trial court correctly concluded that the evidence on which the State's case was based was consistent with the proven facts. The trial court gave careful attention to the evidence of the complainant. Her version found sufficient corroboration in the evidence of her older sister Zethu, in so far as one of the incidents is concerned. Importantly, the complainant's evidence that she noticed a peculiarity regarding the appellant's penis suggests overwhelmingly that she could only have made this observation from being in close proximity to the appellant while he was naked. The bare denial by the appellant and his excuses why the complainant would want to falsely implicate him were correctly dismissed by the court a quo as being without merit. I am satisfied that the trial court considered all the critical aspects of the evidence presented and that the state proved the charge against the appellant beyond any reasonable doubt. I am unable to find any misdirection in the reasoning of the court a quo in convicting the appellant on the count of rape.

[20] The conviction of the appellant, in light of the charge against him and in the absence of substantial and compelling circumstances, would attract a life sentence based on the complainant being under the age of 16 at the time of the offence; that she was repeatedly raped and that the appellant knew at the time of the offence that he was HIV positive. This latter feature was not relied on by the State in evidence or as a component of the charge against the appellant as this factor only became known when the appellant testified.

[21] The court a quo took into account the personal circumstances of  the appellant, his history of previous convictions including his release on parole in April 2011 after having been sentenced to 12 years imprisonment for robbery in October 2003. It is clear that his previous incarceration did not have a rehabilitative effect on him. At the same time, the trial court properly considered the seriousness of the offence and that it was perpetrated against his niece, who was 11 years old at the time.   The appellant betrayed the trust that the complainant would have placed in him as an elder in her family. Moreover, she repeatedly testified that the appellant threatened to kill her entire family if she reported the incident to anyone. This would appear to be consistent with the evidence of Zethu, the complainant's older sister, who testified that when she informed her grandmother that the complainant was being raped by the appellant, the grandmother also expressed concern that the appellant could kill her.

[22] It is trite that the imposition of a sentence is one which falls pre-eminently in the domain of the trial court and it is only if there has been an irregularity or misdirection, or where the sentence is 'shocking', 'startling' or 'disturbingly inappropriate', that an appeal court will interfere with the sentence imposed.[1] The court a quo properly took into account the prevalence of rape of young children. Society looks to the courts as a last refuge to help eradicate this scourge. As the Supreme Court of Appeal stated in S v Chapman 1997 (3) SA 341 (SCA) at 3441 that '[rape] is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim.' The legislature has seen it proper to mandate a prescribed minimum of life imprisonment as a deterrent against this type of behaviour In the absence of any substantial and compelling circumstances, of which I found none, I conclude that there is no basis to interfere with the sentence imposed. There is no evidence of any misdirection by the court a quo.

[23]        In the result, I make the following order:

The appeal against the appellant's conviction and sentence is dismissed.

Chetty J

LOPES J

Appearances

For the appellant:        Mr E Chiliza

Instructed by:              Legal Aid Durban

Tel:                              031 304 0100

Email:                         EmmanuelC@Legal-aid.co.za

And too:                      PregasenM@legal-aid.co.za

For the respondent:     Mr K S Krishen

Instructed by:              The Durban Public Prosecutions

Tel:                              031 334 5010

Email:                         kshah@npa.gov.za

Date reserved:             21 July 2021

Date of judgment:       30 July 2021

Kindly note this judgment is delivered electronically on 30 July 2021 at 11h30

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