S v Dyani (CC63/2024) [2024] ZAECELLC 48 (9 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – EAST LONDON CIRCUIT COURT)

Editorial note : Certain information has been redacted from this judgment in compliance with the law.

Case No: CC63/2024

 

In the matter between:

THE STATE

and

PHUTHUMILE DYANI Accused

 

JUDGMENT

Metu AJ

 

Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.¹ [my underlining.]

 

INTRODUCTION

1. The scope of the offence of rape has been drastically widened by the advent of the Sexual Offences and Related Matters Amendment Act, 32 of 2007 (“SORMA”).

2. It is easy to make allegations of rape but challenging to prove. Hence allegations of rape attract caution and scrutiny.

3. Section 3 of SORMA defines rape as:

“Any person (A) who unlawfully and intentionally commits an act of sexual penetration with a complainant (B) without the consent of B is guilty of the crime of rape.”

4. In essence, the elements of the offence of rape are:

4.1. a person (A) intentionally penetrates the vagina or anus or mouth of another person (B) be with his penis;

4.2. B does not consent to the penetration; and

4.3. A does not reasonably believe that B consents.

5. In this matter, the accused is a seventy-two (72) year-old male, therefore in the twilight of his years. The survivor of rape SL (“complainant”), on the other hand, is a young girl who, at the time of the alleged offence, was a bubbly eight-year-old (8).

6. The accused and the complainant used to live in the same neighbourhood, with their various homes being close to each other in the same street.

7. The accused has since left his place of abode after the community got to know of the allegations of rape, thereby was confronted by a community police forum.

THE CHARGE

8. Without regurgitating the indictment, it suffices to state that the accused was charged with rape in terms of the Sexual Offences and Related Matters Amendment Act, 32 of 2007 (“SORMA”). The state invoked the provisions of Sections 51 (1) and 51 (2) of the Criminal Law Amendment Act 105 of 1997 (“CLAA”), in that the discretionary minimum sentence of life imprisonment applies in the event of conviction.

9. It was alleged that the accused, on diverse occasions, had sexual intercourse with a nine (9) year old girl per vaginam and per anum without her consent and against her will.

THE PLEA

10. Before the accused pleaded to the charges, he was apprised of the significance and implications of the provisions of Sections 51 (1) and 51 (2) of CLAA, as well as the provisions of section 250 of the Act were fully explained him. He confirmed that the competent verdicts in terms of section 258 of the CLAA were explained to him by his legal representative. It is important to record that the accused confirmed that he understood the charges.

11. The accused pleaded not guilty, and his plea explanation was simply that he never engaged in any sexual activity with the complainant.

CASE FOR THE STATE

12. The state made the following application, which was not opposed by the defence:

12.1. that the proceedings be held in camera in terms of Sections 153 of the Criminal Procedure Act, 51 of 1977 (“CPA”);

12.2. that the evidence of the complainant be given by way of a closed-circuit television per provisions of Section 158 of the CPA; and

12.3. that the complainant gives evidence through an intermediary as contemplated in Section 170A of the CPA.

13. Ms. Bukeka Felicia Fikizolo (“Ms. Fikizolo”) was appointed as an intermediary and duly sworn in to assist the complainant. Evidence of the complainant was therefore tendered through Ms. Fikizolo.

Evidence of the complainant (testifying through an intermediary).

14. The complainant was doing grade 1 at Nyathi Senior Primary School at the time of the incident. Her class teacher was Ms. Wintshi, stated that, she knew why she was in court; something had happened to her.

The cell-phone incident.

15. Her mother had sent her to charge her cellular phone at Malume’s place as they did not have electricity at her home.

16. According to the complainant, Malume’s place is in front of her home, closer to the road.

17. The complainant stated that Malume was an old person. When asked if she was asked to point out Malume, would she be able to do so at a later stage? She responded that she would not because she was afraid. (At this stage, the complainant wept.)

18. According to the complainant, she found Malume alone when she got to his place. While fixing the phone to the charger, Malume pulled her and undressed her trousers and undergarments, which he removed completely.

19. Malume placed the complainant on the bed, making her lie on her back. Malume also undressed and took out his urinating organ, which he inserted into the complainant’s.

20. The complainant testified that she felt pain in her urinating organ. Later, she dressed herself and went home.

21. The complainant stated that she was hurt by what Malume did to her.

22. The complainant did not go home with the cellular phone. She left it behind, and she collected it later in the company of her sibling. They went to fetch the cellular phone on the same day and returned it to her mother.

23. The complainant testified that she did not tell anyone about what had happened when she got home. She was afraid of being stabbed as Malume had threatened he would if she told anyone. (The complainant wept again.)

24. This was the only occasion the applicant was sent by her mother to Malume’s place, wherein Malume did what he did (by inserting his urinating organ into hers).

25. The complainant stated that she was sent by her big sister on another occasion to boil water for her to bathe, as there was no electricity at their home.

The water incident.

26. The complainant went to boil water, which she was carrying with a jug. On this day, she was wearing a dress. Malume pulled the complainant and placed her on the bed. Malume undressed the complainant’s undergarment. She was on her back. He also undressed. Malume was wearing shots. He then took out his urinating organ and inserted it into that of the complainant. The complainant felt pain when he was inserting his urinating organ into hers. Malume made thrusting movement. Later he took out his urinating organ. (The complainant was emotional, crying and the court adjourned to allow her to compose herself.)

27. The complainant then dressed herself and went home. She brought the boiled water for her big sister to wash.

28. Again, she did not tell anyone at home about what had happened because she was afraid as Malume had said he would stab her if she told anyone.

The motor vehicle incident.

29. The complainant was directed to the photo album, submitted by the state and marked “Exhibit B”. Particular reference was made to photo number 7. She testified that she was the person appearing in the picture.

30. The complainant averred that those photos numbered 3 to 6 show Malume’s motor vehicle.

31. According to the complainant, Malume called her and the other children she was playing with in their yard, saying they should play in his car. She was with Alu and Ange.

32. The other two (2) children sat at the back, and she sat in the front passenger seat whilst Malume took the driver’s seat. The complainant did not remember what she was wearing on this occasion.

33. In Malume’s car, he touched her on her urinating organ. She was still wearing her underwear. The complainant’s mother came to borrow a phone from Malume. Malume let go of her.

34. When the complainant’s mother came to borrow a phone from Malume, the complainant, Alu and Ange were in Malume’s motor vehicle together with Malume. The complainant’s mother did nothing, and the complainant did not get out of the motor vehicle.

35. When the complainant’s mother left, she followed. She was afraid and did not tell her mother what had happened in the motor vehicle.

36. . The complainant felt pain in her buttocks. The complainant’s mother noticed that there was something wrong with her. She told her mother what Malume did to her. The complainant testified that she ended up telling her mother and grandmother what Malume did to her.

37. The complainant’s grandmother called Isiphile’s mother and father.

38. During the complainant’s tendering of evidence, she was given anatomic dolls from which she positively identified the male and female. One doll was wearing a dress, which indicated that it was a girl doll. Another doll was bald-headed. She indicated that this was a boy doll. The boy doll, according to the complainant, was an old man.

39. Using the dolls, the complainant demonstrated what Malume did to her. She undressed the female doll, took off her underwear, and also took the male doll and undressed it. She then put the male doll on top of the female doll and simulated thrusting movement by the male doll while on top of the female doll.

40. At the end of the complainant’s testimony, the defence did not cross-examine her.

Evidence of the Forensic Nurse.

41. Ms. Nomvuyo Makinana (“Ms. Makinana”) was called in by the state as the second witness. She stated that she was a forensic nurse employed by the Eastern Cape Department of Health since 2005, stationed at Cecilia Makiwane Hospital (“CMH”).

42. Ms. Makinana testified that she was a registered professional nurse. She obtained her qualifications from the then-Ciskei College of Nursing, now known as Lilitha Nursing College. She obtained an advanced diploma in forensic nursing at the University of the Free State. She stated that she did her advanced forensic nursing diploma in 2018.

43. Ms. Makinana is no longer employed by the Eastern Cape Department of Health as a forensic nurse. However, she is still a member of the South African Nursing Council.

44. According to Ms. Makinana, her daily routine is giving treatment to victims of sexual assault and assisting doctors. Her daily work activities include, but are not limited to:

44.1. examining survivors of rape;

44.2. collecting DNA evidence; and

44.3. giving treatment to survivors of rape.

45. She stated that, on average, in the Thuthuzela unit, which is attached to the CMH, they see between seventy (70) to eighty (80) sexual assault patients and children per month. This number includes child victims.

46. Ms. Makinana testified that on 18 October 2023, she was at CMH doing the 07:00 to 19:00 shift. On this day, she saw the complainant at 09:00. She compiled a report on the examination she conducted on the complainant. The said report is colloquially known as the “J 88”, which is a “Report on a Medico-Legal Examination by a Health Care Practitioner”. The “J 88” was handed up as documentary evidence and accepted as “Exhibit C”.

47. Ms. Makinana stated that the complaint was in the company of her mother, and the latter was present when she conducted the medico-legal examination.

48. Of note is that Ms. Makinana asserted that what is recorded in the “J 88” are her observations during the medico-legal examination.

49. Ms. Makinana testified about what she recorded at page 2 under item 5, wherein she recorded the date of the incident as 10 October 2023. She further clarified that she got what she recorded therein from the complainant.

50. Ms. Makinana did not explore or investigate whether the complainant referred to the perpetrator as Malume or whether the complainant was or was not related to the perpetrator. However, she testified that children often refer to people by the names they are usually called.

51. Ms. Makinana went into detail about both the anal and gynaecological examination she conducted on the complainant. She found that there was a bleeding laceration on the right side of the vestibule, redness on the left side of the vestibule and a swelling at 9 o’clock of the hymenal tissue. There was no discharge.

52. Ms. Makinana’s findings were that there was penetration, although she could not tell what was used to penetrate the complainant. When pressed by the legal representative for the state if her findings were consistent with the version of the complainant that a penis penetrated her. Ms. Makinana’s answer was confirmative.

53. Ms. Makinana also testified that she could not tell whether the complainant was penetrated once or on diverse occasions. Her findings were only consistent with the complainant’s version that she was penetrated.

54. Under cross-examination, Ms. Makinana confirmed that these were fresh injuries and there were no old fissures. The hymen was still there but swollen.

55. Ms. Makinana stated categorically that the fact that she did not observe any injuries beyond the hymen does not mean there was no penetration. She contended that penetration may occur beyond the hymen, but there be no injuries. In the same breadth, there may have been no penetration beyond the hymen. She stated categorically that penetration beyond the labia majora is a penetration. [emphasis added].

56. Ms. Makinana explained at length that the absence of a hymen happens in circumstances of previous penetration. It may not be gone entirely where the patient has not had numerous penetrative sexual intercourse.

57. She further indicated that there are congenital issues where a person does not have the hymen. The hymen does not only get perforated or torn as a result of penetrative sex only.

58. Ms. Makinana saw the complainant some seven (7) to eight (8) days after the incident, however, she indicated that she could not conclusively determine when the incident occurred. All she could confirm was that there was penetration.

Evidence of the complainant’s mother.

59. The state called Ms. S[…] L[…] (“Ms. L[…]”), who is the biological mother of the complainant as the third witness in the matter.

60. She stated on oath that she was the mother of the complainant and at the time of the incident, they (together with the complainant) were staying at number […] D[…] Street; Duncan Village; East London.

61. She further testified that the accused was at the time also staying at D[…] Street, very close to their home. They were basically neighbours.

62. Ms. L[…] testified that Phuthumile Dyani is the accused's name, who is alternatively known as “Malume”.

63. She stated that the complainant also referred to the accused as Malume. This was the same position with other children in the area.

64. Ms L[…] testified that she recalls seeing her child with Malume sitting in his car. She referred to photos numbered 3 to 8 in the photo album. When she saw them, Malume was sitting on the driver’s side, and the complainant was in the front passenger seat. There were also two (2) other children, namely Alunamda and Angesisa.

65. According to Ms. L[…], the complainant would be sent on errands to Malume’s place before this occasion. She confirmed that they did not have electricity at her home, and her sister sent the complainant to charge her cellular phone. She also sent the complainant to heat water to wash. This was because their electric cable connecting to their home was stolen.

66. When Ms. L[…] sent the complainant to heat the water, she did not bring the water and when she asked where was the water, she asked that Angesisa accompanies her. Angesisa accompanied the complainant and they brought the water. She found it strange that the complainant would want to be accompanied to Malume’s place as she used to go there on her own.

67. On the day Ms L[…] saw the complainant with Malume in his car together with Alunamda and Angesisa, she called the complainant to come. The complainant was afraid and instead ran towards the shop. Ms. L[…] also found this to be a strange reaction.

68. Ms. L[…] went to the complainant and the latter eventually came and they both went back home.

69. The complainant, during the night, eventually reported that when she was sitting, her buttocks were pained (this being a reference to her private part). Ms. L[…] clarified that by buttocks, the complainant was referring to her private part or urinating organ. According to the complainant, her buttocks were sore.

70. Ms. L[…] probed about what had happened. She then examined the complainant’s private part by causing her to lie on the bed. She instructed the complainant to take off her panty and open her legs. She saw blood on both her panty and her urinating organ. At this stage, Ms. L[…] called her grandmother who stays with them and she also observed the bleeding.

71. On the following morning, they called Sisipho’s mother and father. (Reference to Sisipho’s mother and father is Mr and Mrs Nkonki who are numbers ... and … in the witness list). Malume was also called.

72. Ms. L[…] asked the complainant what caused her to bleed. The complainant said Malume had inserted his urinating organ on her. She further said Malume kissed her and inserted his tongue. I then asked if she could demonstrate using my sister Mbali. The complainant then said she would lie down and undress and asked Mbali to lie on top of her. When Mbali lied on top, she was not doing anything. At that stage, the complainant suggested that she plays the role of Malume. Therefore, she asked to be on top of Mbali. In this top position, the complainant made a thrusting movement.

73. Ms. L[…] pointed to the accused as he was sitting in the dock as Malume.

74. In the house, the complainant pointed to Malume saying this is the Malume who raped me. Malume got angry and wanted to assault the complainant. This was prevented as the child was behind Ms L[…] and her sister and they blocked the accused’s way.

75. Ms. L[…] further testified that Mrs. Nkonki suggested that the matter be referred to police.

76. Ms. L[…] averred that they proceeded to Jabavu clinic in Duncan Village. At the clinic they were informed that they do not do child examination and called the police.

77. When the police came, they were taken to Lloyd police station and thereafter to CMH.

78. She testified further that this was conducted in her presence when the complainant was being examined at CMH. The nurse had earlier closed a curtain covering the examination area but later called out that she must come and see.

79. When she came to the examination area, she saw blood and a laceration on the complainant’s urinating organ, as the nurse showed her.

80. Ms L[…] stated that in their area, no one else goes by the name of Malume. The accused is Malume.

81. According to Ms. L[…], they had good relations before this incident and there was no bad blood between the accused and her family. There was no reason for her to implicate the accused.

82. Ms. L[…] went on to say that the accused has since moved out of his house in D[…] Street after the case of her child was reported to the police and known by the local community.

83. According to Ms. L[…] on the day there was a meeting of some local people together with the accused, the latter advanced towards the complainant when she said she was sexually violated by Malume. She had to block the accused’s way. According to Ms. L[…], she did this with her sister by shielding the child behind them.

84. They were advised to report the matter to the police. Consequently, they went to Lloyd police station where they were taken to CMH and after that they went back to the police station and a docket was opened.

85. Police took them back to D[…] Street, where they found the accused being accosted by member of the community better known as the “police forum. At this stage, the complainant pointed out the accused as the perpetrator who had sexually violated her. The police then arrested the accused.

86. In cross-examination, Ms. L[…] was pressed to tell the missing dates in her testimony; she was asked when she went to the police station. She responded that it was last year, but she could not recall the date.

87. She was also asked as to when did the child make the report? She responded that it was last year but could not recall the month and the date.

88. She was probed about the number of inappropriate encounters with Malume. Ms. L[…] recounted the motor vehicle, phone, and water incidents as inappropriate encounters.

89. She testified that the complainant informed her that the accused touched her private parts whilst they were inside the car. The car was parked inside the garage, but a passer-by could see as the garage door was usually open.

90. Ms. L[…] refuted that Ms. Winnie Xundu (“Winnie”) was present in the meeting of some locals and the accused at her home. It was put to her that Winnie would be called to testify that she was present, and the complainant had said in the meeting that she was playing “Mom and Dad” with Avuyile, her boychild. Ms. L[…] was adamant that Winnie was not present in the meeting.

91. She was further asked whether she knows Mr. Gxabhashe, to which her answer was in the affirmative.

92. Ms. L[…] was told by the defence’s legal representative that when the complainant made this report, she said she was playing with Avuyile, Winnie’s son. Ms. L[…] denied this proposition.

93. When asked whether it was not correct that Ms. L[…]’s grandmother called Winnie. In response, Ms. L[…] stated that it may have occurred probably after she had left. She was strenuously told that Winnie was outside and would be called. Winnie was to testify that Ms. L[…]’s grandmother called her. (It is important to note that this was never carried out as Winnie was not called to testify in the proceedings).

94. Winnie was to come and testify that she was called at the L[…] homestead because the complainant had indicated in the meeting that she was playing “Mom and Dad” in the bush with Avuyile, who climbed on top of her.

95. The witness was told that Winnie was the one who went to call “Tamkhulu”² (this reference is to the accused, before the court). Ms. L[…] stated that the problem was that she did not recall. She only saw Winnie when they returned from the police station and CMH, and she was not there in the morning.

96. It was put to Ms. L[…] that Winnie instructed the defence legal representative that what she told the court about the accused being aggressive never occurred. Ms. L[…] said Winnie was lying.

97. It was put to Ms. L[…] that Winnie would testify that in the meeting the accused said that the only thing that would relieve him or exculpate him was a doctor’s note. According to Ms. L[…] that was not true as the accused only said that when they came back from the police station and CMH.

98. Ms. L[…] was told that Winnie informed the defence legal representative that she even said that the complainant was young for her to do the demonstration. Ms. L[…] denied that ever such happened.

99. The upshot of this line was that the witness was adamant that Winnie was not present in the meeting.

100. Ms. L[…] confirmed that Mr. Gxabhashe was present in the meeting together with the Nkonki family. She was taken to task for not mentioning that Mr. Gxabhashe was also present. After an objection that this was not a fair question to the witness as Ms. L[…] was not led on that aspect, the defence did not pursue this line of questioning.

101. Ms. L[…] was asked what the reason was for Mr. Gxabhashe being called into the meeting. She answered that Mr. Gxabhashe was called to listen to the proceedings.

102. Ms. L[…] was asked how big her sister was, and she responded that she was a tall and stout woman, more prominent than her. A follow-up was how, then, during the demonstration, her sister could lie on top of the complainant. She was adamant and indicated that her sister lay on top of the complainant during the demonstration.

Evidence of a community member called into the meeting held at the L[…] homestead.

103. The state called Mr. Mkhumbuli Nkonki (“Mr. Nkonki”), who stated under oath that he also was staying at D[…] Street. He further averred that he knows the accused as an elder in the community.

104. According to Mr. Nkonki, the accused was generally known in their area as Malume. Consequently, he referred to everyone talking with him as “Mtshana”.

105. Mr. Nkonki stated that the complainant was known to him as a young child by the name of S[…] L[…].

106. He indicated that she understood the relations between the accused and the L[…] family to be cordial and good before this allegation of rape.

107. According to Mr Nkonki, the accused generally loves children. He knows the accused would let children play in his car with the garage open.

108. Mr. Nkonki confirmed that he was called to the L[…] home. On arrival, he found Winnie among other locals who had converged at the L[…] home.

109. The complainant informed the people present that she had been sexually violated by the accused.

110. Mr. Nkonki then advised that the accused be called, the complainant narrated in the presence of the accused what happened.

111. The complainant, in the presence of the accused, stated that she was sexually violated by “Malume”.

112. According to Mr. Nkonki, the accused appeared to be perturbed and he shifted from where he was sitting next to him and took a chair and put it in the front.

113. Mr. Nkonki further testified that after Malume was accused of raping the complainant, he left the locality. He is no longer staying at D[…] street.

TEST FOR DISCHARGING AN ACCUSED AT THE CLOSE OF THE CASE FOR PROSECUTION

114. Section 174³ provides that, ‘If, at the close of the case for the prosecution at any trial, the court is of the opinion that no evidence that the accused has committed an offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty’.

115. In this constitutional dispensation, the entrenched rights to dignity and personal freedom dictate that protection be afforded to the accused, in that prosecution not be commenced without minimum evidence, and the corollary is also true that prosecution should cease when evidence finally falls short of the threshold.

116. The threshold is that the prosecution must have presented evidence that any reasonable court could convict without the hope that the accused will take the witness stand and incriminate himself or herself.

117. Heath J, in S v Gqozo set out principles underlying the Section 174 application as follows⁴:

117.1. the innocent should not be convicted;

117.2. the conviction of the guilty must be obtained with the best possible endeavours;

117.3. the right to silence must be given effect to as far as possible; and

117.4. the rights of the accused are very important, but the right of the community to see justice done is equally important.

118. Section 174 of the Criminal Procedure Act permits a trial court to return a verdict of not guilty at the close of the case for the prosecution, if the court is of the opinion that there is 'no evidence' (meaning evidence upon which a reasonable Court might convict). I have had regard of the dicta postulated in S v Lubaxa⁵. I reference paragraphs 10 to 11 of Lubaxa without restating the principles therein. It is written:

[10] Section 174 of the Act repeats in all material respects the terms of its predecessors in the 1917 and 1955 Criminal Codes. It permits a trial court to return a verdict of not guilty at the close of the case for the prosecution if the court is of the opinion that there is no evidence (meaning evidence upon which a reasonable person might convict: S v Khanyapa 1979 (1) SA 824 (A) at 838F-G) that the accused committed the offence with which he is charged, or an offence which is a competent verdict on that charge.

[11] If, in the opinion of the trial court, there is evidence upon which the accused might reasonably be convicted, its duty is straightforward - the accused may not be discharged and the trial must continue to its end. It is when the trial court is of the opinion that there is no evidence upon which the accused might reasonably be convicted that the difficulty arises. The section purports then to give the trial court a discretion - it may return a verdict of not guilty and discharge the accused there and then; or it may refuse to discharge the accused thereby placing him on his defence.

 

RULING ON THE SECTION 174 APPLICATION

119. I take a cue from Lubaxa as the locus classicus on applications of this nature. I am not persuaded that the case for the prosecution was so poor to such an extent that no finding of guilt could be sustained.

120. In Lubaxa the SCA held that if there is no possibility of a conviction other than if the accused enters a witness box and incriminates himself, a failure to discharge an accused in those circumstances would be a breach of rights guaranteed by the Constitution. The SCA held:

‘it ought to follow that if a prosecution is not to be commenced without a minimum of evidence, so too should it cease when the evidence finally falls below that threshold. That will pre-eminently be so where the prosecution has exhausted the evidence and a conviction is no longer possible except by self-incrimination. A fair trial, in my view, would at that stage be stopped, for it threatens thereafter to infringe other constitutional rights...’

121. Having considered the conspectus of evidence led in this matter, I find that the application for discharge at the end of the state case cannot succeed. Therefore, the accused is put to his defences.

DEFENCE CASE

122. The accused, ostensibly advised by his legal representative, elected not to lead any evidence.

123. The defence, therefore, closed its case.

124. It is apt to borrow from paragraph 34 of Cupido v S⁶) where Tokota AJA, penned:

‘Furthermore, an accused person is under no obligation to testify. However, once the prosecution has produced sufficient evidence that establishes a prima facie case, such evidence may become conclusive if not dislodged by credible evidence of the accused. Thus, absent a credible version from the accused, the version advanced by the prosecution, if found credible, has to be accepted. In S v Dlamini and Others wherein, Kriegler J emphasised the importance of freedom of choice in a democracy. He stated that liberty to make choices brings with it a corresponding responsibility and “often such choices are hard”.’

DISCUSSION

125. The defence argued that there was no perpetrator for the crime of rape before Court. The argument goes on to say that the state's case became a stillborn the moment the complainant was asked if she could point out the accused and she answered that she could not.

126. The context in which this was canvassed is important as the prosecution asked the question in broad terms and not to elicit specifically whether the complainant knew the identity of the accused.

127. In as much as the evidence pertaining to rape and sexual assault, is that of a single and also child witness, which triggers the application of the cautionary rule, the evidence of the complainant was clear and satisfactory in every material respect. To the extent that there was no need for corroboration.

128. In this matter the report about sexual intercourse was not made immediately or soon after the alleged sexual encounters between the complainant and Malume.

129. It is important to note that, the only evidence before this court is that of the complainant, which evidence has not been challenged as the accused’s legal representative elected not to cross-examine the complainant. The complainant’s evidence has, therefore, not been dislodged by the accused.

130. I am alive to the fact that a single witness, and especially a child, should give reasonable and probable evidence in every material respect.

131. I have no shadow of a doubt that the complainant knows the accused person, and there is no evidence that there is a possibility of mistaken identity.

132. There is also no evidence presented that the complainant may have been influenced to implicate the accused, possibly in protection of someone else.

133. There is uncontested evidence that the complainant was sexually violated. I have no reason to think the wrong person was brought before this court. There is no shadow of doubt in my mind that there is a mistaken identity. Despite the tender age of the complainant, she testified clearly and satisfactorily concerning every material respect of the crime with which the accused was charged.

134. I find that the evidence of the complainant is credible and, therefore, must be accepted.

135. In S v Makeba and Another⁷, the court held:

‘It is clear from the authorities that if corroboration was required it had, for the purpose of the so-called cautionary rule, to be corroboration implicating the accused and not merely corroboration in a material respect or respects. (See Ncanana's case at 405; R v Mpompotshe and Another 1958 (4) SA 471 (A) at 476; S v Avon Bottle Store (Pty) Ltd and Others 1963 (2) SA 389 (A) at 392.)

I would like to emphasise that, as was pointed out by Schreiner JA in Ncanana's case supra at 405, it is not a rule of law or practice that requires the Court to find corroboration implicating the accused, but what is required is that the Court should warn itself of the peculiar danger of convicting on the evidence of the accomplice and seek some safeguard reducing the risk of the wrong person being convicted, but such safeguard need not necessarily be corroboration. Once, however, the Court decides that in order to be so satisfied it requires corroboration, it would be pointless to look for corroboration other than corroboration implicating the accused.’

136. I must point out that there was no need for corroboration to satisfy the elements of the crime and also to determine who the aggressor/offender was. However, it is important to note that there was corroboration to the extent that with regard to the cellphone incident, the complainant’s mother testified that the complainant was reluctant to go to Malume’s place alone and asked that her younger brother accompany her. She stated that she found this strange as she had been sent on errands to Malume’s place without being accompanied.

137. Regarding the motor vehicle incident, the complainant’s mother testified that she had gone to Malume’s place and found him in the car with the children. She then called the complainant, asking that she must come home. Instead, the complainant ran towards the shop. This was another strange behaviour.

VERDICT

138. The state adduced direct evidence regarding the commission of the offence as outlined in the indictment and the summary of evidence. The defence, on the other hand, elected not to lead any evidence. All that is before this Court is the state's evidence, which has not been gainsaid as there is no testimony by the accused or any other witness concerning material elements of the offence. Put differently, the state's evidence has not been dislodged by that of the accused.

139. In Osman v Attorney-General, Transvaal⁸, the Constitutional Court aptly stated:

‘Our legal system is an adversarial one. Once the prosecution has produced evidence sufficient to establish a prima facie case, an accused who fails to produce evidence to rebut that case is at risk. The failure to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however, always runs the risk that absent any rebuttal, the prosecution's case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence. If the right to silence were to be so interpreted, it would destroy the fundamental nature of our adversarial system of criminal justice.’

140. Since this Court has no reason to doubt the complainant's evidence, in fact, there is no material for doubting it. Therefore, the accused is found guilty of both counts 1 and 2, as depicted in the indictment.

 

 

EVIDENCE IN AGGRAVATION OF SENTENCE

141. The state called Ms. Nomonde Precious Stamper (“Ms. Stamper”), who took the oath and stated that she was a Social Worker in private practice. She was registered with the South African Council for Social Services Professions with practice. Her registration number is […], and her practice number is […]. The practice number is for the board of healthcare funders.

142. She qualified and obtained a Bachelor of Social Work at Fort Hare University in 1999. She started working as a Social Worker for the Department of Correctional Services in 1999. She has twenty-five (25) years of experience as a Social Worker. In 2006, she was a part-time lecturer at Fort Hare University. She has trained several social work students. Both local and foreign students.

143. Ms. Stamper also stated that she had compiled reports for Lower and High Courts on the readiness for children to give evidence. She has penned numerous reports on competency and impact assessment reports on child victims and rape survivors.

144. She is involved in the community as she is a former Board member of FAMSA - Grahamstown and Makhanda Rape Survivor and Support Group Committee. She left the employ of the Department of Correctional Services in 2018 to pursue her private practice.

145. Ms. Stamper is a published author of a book titled “The Lasting Effect of the Words ‘I Do’ through the Lens of a Widow”, which was published in 2020. She has contributed to articles published in the Drum Magazine and Media 24.

146. Ms. Stamper is a motivational speaker and was given an award by the Daily Dispatch and Johnson & Johnson in 2023 in the local heroes’ award.

147. She is a founder and executive director of Little Voice Foundation which was established in 2019. The Foundation conducts a victim and sexual offender treatment programme.

148. Ms. Stamper conducted an interview and consultation with the complainant after receiving a referral from the office of the Deputy Director of Prosecution. The purpose of the interview was to assess the impact of the rape incident and analysis of medical intervention needed.

149. Ms. Stamper further indicated that she interviewed the complainant and on page 4 of her report, which was handed up and registered as exhibit “D”. In the report Ms. Stamper records the psychological/emotional trauma that the complainant suffered.

150. The complainant informed her that she was scared of being sent on errands. Her mother observed numerous behavioural changes in the complainant after the traumatic event. She now presents with a cheeky behaviour. She is always scared. She has outbursts of anger and is aggressive towards her younger siblings. She experienced nightmares. She has difficulty completing tasks as she forgets what she is doing. The complainant now tends to refuse when sent by an elderly person. She does not want to play.

151. The complainant was violated and threatened by an elderly person known to her. She has feelings of helplessness and these have both psychological and physical elements. She does not have control over what happened. The complainant could not fight or flight due to the threats. Her size rendered her defenceless and she could not fend for herself. The complainant’s space was violated.

152. She believed what was said and was fearful, which led to her not telling what happened because she did not want anything bad to happen to her or others.

153. Ms. Stamper added that the accused could have been the complainant’s grandfather and that has a lot of psychological impact, which affects her perception of sexuality and morality.

SUBMISSIONS IN MITIGATION OF SENTENCE

154. Mr. Nobangule for the defence submitted that the accused:

154.1. is a seventy-two (72) year-old married man;

154.2. with two (2) progenies from the marriage, one is already deceased;

154.3. is a first offender;

154.4. suffers from high blood pressure; and

154.5. also has abdominal pain as a result of the assault.

SUBMISSIONS IN AGGRAVATION OF SENTENCE

155. Mr. Mtsila for the state submitted that:

155.1. the court must consider the age of the child, who was eight (8) years at the time of the incidents;

155.2. she was raped more than once;

155.3. the circumstances of the accused are not remarkable or exceptional;

155.4. rape of children is prevalent;

155.5. accused showed no remorse; and

155.6. sentence of life was the only appropriate sanction.

SENTENCE

156. In deciding on an appropriate sentence, I am guided by S v Zinn⁹ in that I have to consider the triad consisting of the following:

156.1. the crime;

156.2. the offender; and

156.3. the interests of society.

157. There is a prevalence of rape of children by adult men. Given the age gap, the accused may very well be the complainant's grandfather.

158. The repeated conduct by the accused in violating the minor child victim is an aggravating factor. In S v Matyityi¹⁰), the appeal Court increased a sentence of twenty-five (25) years to life imprisonment on the basis, inter alia, that the respondents conducted themselves with flagrant disregard for the sanctity of human life or individual physical integrity. The Court found that the respondents acted in a manner that was despicable in any civilised society, particularly relating to the protection of the rights of all persons, including women. In this matter I extend this expression to include children.

159. Concerning the evidence presented before this Court, I evaluated it cumulatively, to establish if there were or there were no substantial and compelling circumstances as envisaged in Section 51(3) of the Criminal Law Amendment Act 105 of 1997 to deviate from the minimum sentence for this type of crime. Aggravating circumstances far outweigh the mitigating factors. Reasons for that are evident from what I have outlined above. I have taken into account the accused’s circumstances, his emotional condition, mental capacity and age. Therefore, I do not find any substantial and compelling circumstances warranting deviation from the prescribed minimum sentence.

160. Section 28(2) of the Constitution enjoins the Courts to consider children's interests paramount in any matter involving them.

161. In the result, I make the following order:

161.1. The accused is sentenced to life imprisonment for count 1, in terms of Section 51(1)(a) of the Criminal Law Amendment Act, 5 of 1997.

161.2. The accused is sentenced to six (6) years of imprisonment for count 2, which will run concurrently with the sentence in count 1.

161.3. The accused’s personal details will be included into the National Register for Sexual Offenders established under section 42(1) of the Criminal Law Sexual Offences and Related Matters Amendment Act 32 of 2007.

 

 

_________________________________

B METU

ACTING JUDGE OF THE HIGH COURT

 

 

APPEARANCES:

for the State: Adv. Mtsila

instructed by: Director of Public Prosecutions

Mkhanda

for the Defence: Mr. Nobangule

instructed by: Legal Aid Board SA

Qonce

Date of hearing: 11; 12; 13; 14; 15; 21 November 2024 and 09 December 2024.

Date of Delivery: 09 December 2024