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S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007)

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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. CA 16/2007


In the matter between:


ALFRED SEBAENG APPELLANT


and


THE STATE RESPONDENT


_________________________________________________________

JUDGMENT

________________________________________________________


MOGOENG JP.


[1] This is an appeal against the conviction of rape. The conviction is based on the background which is set out below.


[2] On 08 December 2002 and at D… village the Complainant, a 14 years old girl, was sent to the Appellant’s shop by a senior relative, Keitumetse, to buy paraffin, milk and sweeto. Upon her arrival at the shop, she found the Appellant and one of his employees. She bought some items and was served by the Appellant. This is essentially common cause.


[3] On the Complainant’s version, the Appellant then took her to a storeroom within the shop building, where he undressed her and had sexual intercourse with her without her consent. During the sexual act, he also threatened to kill her with the firearm he had should she scream or tell anybody about the incident. At the end of the sexual intercourse, the Appellant gave her R30.00 and a packet of Simba chips.


[4] The only requirement of rape which is the only issue to be decided is whether or not the Appellant had sexual intercourse with the Complainant. All other issues are peripheral.


[5] The evidence given by the State witnesses, which support the conviction, was given by the Complainant, her mother and Keitumetse. The cumulative effect of that evidence is that when the Complainant returned from the Appellant’s shop, she had in her possession a packet of Simba chips and an amount of R30.00 and said that the Appellant had given them to her and had also asked her to come back to his shop at 9 o’clock. Both the Complainant’s sister, P., and Keitumetse were surprised by these things. As a result, the Complainant’s mother was called and informed about them. The mother in turn summoned the Complainant to come to her (the Complainant’s) parental home in Welbedacht Township, which is some distance from D… village where she was.


[6] When the Complainant’s mother questioned her about the aforementioned things, the Complainant told her, after a long period of interrogation, that the Appellant had had sexual intercourse with her against her consent. She then examined the Complainant and discovered some blood, an injury and a whitish discharge with an offensive smell, in her vagina. She eventually took her to a doctor, who compiled a report.


[7] As against the above, the Appellant relies on: (i) one of his employees who was busy packing drinks in the refrigerator which was in the same room in which the alleged rape took place; (ii) other customers were in the shop at the time of the alleged rape; (iii) the presence of people at the shop as at the time of the alleged rape, namely, the occupants of the bakery, his own employees and customers; (iv) the medical report which says that no bruises or tear of the vagina were observed, that the vagina admitted one finger, and that there was no sign of penetration; (v) as was already stated above, the Appellant also alleged that he was framed by the Complainant’s mother. These are basically the issues relied on by the Appellant to refute any allegation that he had sexual intercourse with the Complainant; (vi) the Complainant’s mother once had an affair with him (the Appellant) and at that time, the Appellant refused to give the Complainant’s mother an amount of R5 000.00, which she had asked for. She threatened to get back at him and this is how she chose to make him suffer for his refusal to give her money.


[8] The Magistrate made a positive credibility finding in favour of the State witnesses, which I believe is correct as will be demonstrated hereafter. What reinforces this credibility finding is that both Keitumetse and P. saw the Simba chips and the R30.00 that the Complainant had. They apparently did not expect her to be having them hence their state of amazement. The 9 o’clock appointment is yet another factor testified to not only by the Complainant but by Keitumetse as well. Apart from the credibility findings, the probabilities also support the State’s version.


[9] A sound reason why the Appellant gave the Complainant the Simba chips and the R30.00 can be deduced from the available facts. The reason was the sexual act that she was earlier forced into by the Appellant. These items were the Appellant’s life cover designed to ensure that the Complainant does not only keep the secret but possibly also becomes available for the Appellant’s intended future escapades with her. The 9 o’clock appointment later in the day ties up neatly with the Complainant’s version.


[10] The doctor and the Complainant’s mother observed a whitish discharge from the Complainant’s vagina. The doctor initially did not explain what this was but later contradicted himself by saying on the one hand that the whitish discharge was not spermatozoa, and later saying on the other hand that it could be. But for the observations made by the doctor which a lay person could also make, his expert evidence is confusing, contradictory and of no value. It is, therefore, safe to reject his expert evidence for the brief reasons set out below. He said that he had not been trained at all on how to examine an alleged victim of rape as at the time of the examination of the Complainant. He had also not yet been trained on the compilation of the relevant report. His report was, therefore, not helpful at all.

[11] The doctor also observed that the Complainant’s hymen had been torn. It was, however, not stated whether it was an old or a fresh tear. If a proper examination had been done, it would have been known what the age of the tear was and whether or not it could be relied on by either party.


[12] On the probabilities, the Appellant had sexual intercourse with the Complainant without her consent. One can safely assume that he must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00. The penetration must have been just enough to give him the ‘connection’ he needed and to allow the ejaculated sperms to enter the vagina. The whitish discharge that surprised the Complainant’s mother, who as a mature woman ought to know whether the discharge she saw in the Complainant’s vagina was normal or not, was in all probability, spermatozoa. Even if I am wrong in this finding, I am still satisfied that although the Complainant was a single witness with respect to the actual sexual intercourse, the common cause facts and the corroboration from Keitumetse with regard to the R30.00, and the Simba chips go a long way towards reinforcing the truthfulness and reliability of the Complainant. Notwithstanding the shortcomings in the Complainant’s evidence, the learned Magistrate was correct in believing her.


[13] There are of course some shortcomings in the evidence of the Complainant. She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home. On the contrary, it appears that the countenance of the Complainant was not even remotely suggestive of any sadness or worry. When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant. There is no mention of limping or crying or anything of the kind, notwithstanding the Complainant’s assertions that she was heartbroken and limping as a result of the sexual intercourse. There is also a contradiction between her evidence and that of her mother with regard to whether it was in the evening of the event or at about 06h00 the next day when the Complainant disclosed the sexual act to the mother. This is not an exhaustive list of the unsatisfactory features in her evidence. Notwithstanding these and other shortcomings, both the Complainant and her mother gave their evidence satisfactorily. The Appellant’s evidence is, however, unsatisfactory.


[14] It is improbable that this alleged rape was a set up by the Complainant’s mother as the Appellant claims. The Complainant was in fact at the Appellant’s shop in the morning in question. She in fact returned from the shop eating Simba chips and having the R30.00 that she did not have when she went to the shop. She claims to have been threatened by the Appellant to be killed with a firearm should she tell anybody about the sexual intercourse. That, and the prospects of getting another R30.00 and Simba chips would probably explain why it took her mother so long to get her to tell her about the sexual intercourse. As it turned out, the Appellant himself confirms that he has a firearm that answers to the description given by the Complainant. There was also no indication or evidence, contrary to counsel’s submission, that the Complainant somehow knew that all firearms are black in colour and that she used this general knowledge to fabricate this allegation.


[15] I am satisfied that the appeal against the conviction must fail and it therefore stands to be dismissed.


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


a) The appeal is dismissed and the conviction is confirmed.





__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT


I agree




____________

M.M. LEEUW

JUDGE OF THE HIGH COURT


I agree





______________

R.E. MONAMA

ACTING JUDGE OF THE HIGH COURT




APPEARANCES


DATE OF HEARING : 23 MARCH 2007

DATE OF JUDGMENT : 22 JUNE 2007


COUNSEL FOR APPLICANT : R. DUVENAGE

COUNSEL FOR RESPONDENTS : ADV M.J. DE BEER


ATTORNEYS FOR APPLICANT : G.J. MAREE ATTORNEYS

(Instructed By KLINENBERG DUVENAGE ATTORNEYS)

ATTORNEYS FOR RESPONDENTS : DIRECTOR OF PUBLIC PROSECUTIONS