S v M

• Jurisdiction: South Africa
• Judge: Harms JA, Brand JA and Heher AJA
• Judgment Date: 31 May 2002
• Citation: 2003 (1) SA 341 (SCA)
• Docket Number: 397/2001
• Hearing Date: 22 May 2002
• Counsel: M J Madondo for the appellant. R B Mdutyana for the respondent.
• Court: Supreme Court of Appeal

Heher AJA: H

[1] The appellant, a trade union organiser, aged 36, was tried in May 1997 before a regional magistrate for the rape of his six-year-old daughter during 1989. He was convicted and sentenced to 10 years' imprisonment. He appealed to the Natal Provincial Division of the High Court, applying at the same time for the remittal of the case I for the hearing of two further witnesses for the defence. The application succeeded in April 1998.

[2] In January 1999 the trial re-opened. Both witnesses eventually testified. An application by the appellant's counsel for the recall of the J

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complainant for further cross-examination was refused by the magistrate. He convicted the appellant as before and imposed the A same sentence.

[3] The Natal Provincial Division dismissed a further appeal but granted leave to appeal to this Court. (The judgment of the Court a quo is reported sub nom S v M at 2000 (2) SACR 474.) B

[4] This appeal concerns alleged irregularities and the merits of the conviction. Before discussing the nature of the irregularities and the circumstances in which they arose, it will conduce to a better understanding if I summarise the evidence as it stood when the application to reopen was granted. C

[5] For the State, the witnesses had been the complainant, the complainant's maternal grandmother (Mrs Mbatha) and a district surgeon. The appellant and his sisters Zanele and Siphiwe Myeni testified for the defence. D

[6] The complainant was 13 years old when she gave her evidence in 1997. She told the Court that during 1989 she stayed with her father and her aunt Zanele. Her parents were divorced. Her mother lived in Johannesburg. She and her aunt shared a bed. Every night her father would come and take her, often half asleep, to his own room. There he would have sexual intercourse with her. She, not having an understanding of what was happening, did not protest although she E suffered initial bleeding and severe pain. She estimated the period of such abuse at 'more or less six months'. She claimed that she complained several times to her aunt Zanele. This occurred from a few weeks after the abuse started. During 1995 the complainant wrote a letter to her grandmother which contained allegations against the F appellant. According to the complainant 'when my granny read the letter she also cried and I also cried. Then my granny told my elder aunt. Then my granny did not know how to tell my mother and she was scared to tell my mother, so it just kept quiet like that.' During the school holidays of 1996 the complainant saw an advertisement on G television about Child Line. She phoned its number and told a lady that she had been raped and that she did not know how to tell her mother. An immediate call was made to the grandmother (whose telephone number the complainant had furnished). Eventually the complainant's mother was informed. A charge was laid against the appellant. On 31 July 1996 the complainant was examined by the district surgeon of her home H district.

[7] The complainant's grandmother confirmed that the complainant had resided with the appellant during 1989. She identified the letter received by her from the complainant in December 1995 when the complainant was in std 5. She decided not to contact the complainant's mother who lived far away because she was not sure what I her reaction would be. The witness also testified about an incident in 1994 when the complainant who was visiting her became ill. She noticed something amiss with her genitalia and examined the complainant. Her evidence was consistent with the contents of the letter which the complainant wrote to the J

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grandmother and suggests that this incident may have provoked the letter. It is significant that the incident and A the letter preceded the laying of a charge by a considerable time.

[8] The evidence of the district surgeon played an important role in the conclusion of the trial Court and on appeal. At the time of his examination of the complainant a history was furnished of sexual assaults on more than 10 occasions. He conducted an examination that B was painful for the complainant. She had no hymen. He found a chronic irritation of the vaginal walls and hypertrophy (enlargement) due to overgrowth of tissue of the lateral wall of the right labia minora, a condition usually attributable to persistent trauma to the same area, C which could have been caused by a penis or sexual abuse. With such an injury intercourse would be painful each time it occurred. He said that he was unaware of any sexually transferable disease which could have caused the condition. Pelvic tissue heals easily. Accordingly, he found it difficult to estimate how long the complainant might have been exposed to abuse or when in relation to his examination that might have occurred. It was possible that it could have happened as long ago D as 1989.

[9] The appellant denied any sexual abuse of the complainant by him although he did not dispute, in general terms, that it had taken place; he was very fond of the complainant and would not have abused her. Asked why the complainant should make such allegations, he gave E three reasons: first, his separation from the complainant's mother in 1984 which caused friction between their respective families; secondly, in August 1995 he had called the complainant and told her he was making preparations to pay lobola for one Orella Sithole with whom he was then in love, which caused an angry reaction from the complainant. This was F the first sign of a change for the worse in her attitude towards him. He told the complainant he was planning to marry in September 1997 and she, as a result, went to stay with her grandmother. Thirdly, the grandmother harped on the break-up of the marriage whenever they encountered each other. The appellant alleged that the complainant told G him that she was influenced by her mother and grandmother to lay the charge. That, he said, was why he had earlier referred to the friction between the families.

The remittal proceedings H

[10] Because I have reached the conclusion that inadequate consideration was given to the remittal application and, in consequence, a lengthy and unnecessary prolongation of the trial resulted, it is advisable to refer at some length to those proceedings. In doing so the fate of this appeal will also become clearer. I

[11] The appellant gave notice that an application would be made at the hearing of the first appeal in terms of s 316(3) of the Criminal Procedure Act 51 of 1977 for the setting aside of the conviction and sentence and the remittal of the matter to the regional magistrate to hear the evidence of Siphamandla Ngema and Eli Khumbuza. J

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[12] In his founding affidavit the appellant stated that he had been unaware during his trial that the complainant had a boyfriend. A When that came to his notice after he was sentenced the appellant made arrangements to contact the boyfriend (Ngema). Ngema duly made an affidavit in which he stated that he and the complainant used to have sexual intercourse. The appellant also attached an affidavit by Ms Khumbuza in which she confirmed that the complainant had tearfully B admitted that she was influenced to incriminate him by her mother and grandmother. He stated that Ngema was not known to him until after the trial and Khumbuza was not available to give evidence at it.

[13] Ngema deposed to an affidavit which was used in support of the application, in which he said: C

'1.

I am the student doing std 9 at Gudu High School, Nqutu district. I was born on 28 April 1979.

2.

I know the complainant Lungile Myeni and his father Johannes Myeni since 1993. D

3.

In June 1993 when the schools were closed for winter holidays I saw Lungile Myeni at Mondlo Township and I started to propose her and we fell in love the same month.

4.

At that stage Lungile Myeni was not staying in the Mondlo Township but she was staying at Lakeside Oak Street, Vryheid. She used to come to Mondlo Township during the week-ends and holidays. E

5.

In 1993 I had sexual intercourse with Lungile Myeni once in 1993. She came to my home during the absence of my grandmother and my sister who were staying with me.

6.

I continued to have sexual intercourse with Lungile Myeni at my home in 1994, 1995, 1996 until she was taken away by her mother to Johannesburg in 1996. F

7.

I cannot say how many occasions I had sexual intercourse with Lungile Myeni in 1994, 1995, 1996 but it was at intervals of about three months.

8.

I was contacted by Mandla Mtambo who is a student at Gudu High School that the attorneys for Johannes Myeni wanted to take this affidavit from me and that I should meet Mr Mkhize at Vryheid magistrate's court on 30 October 1997.' G

[14] Whether the State opposed the application is not clear. Probably it did not. The Judges who granted the order (Jappie J and Moodley AJ) contented themselves with the briefest of reasons, noting that they had read the application and were satisfied that the affidavit complied with s 316(3). (The Court a quo also seems to have regarded that section as setting out the applicable law.) In fact s 316 did not authorise the relief which was claimed. That H section relates to applications for leave to appeal by an accused who has been convicted of an offence before a Superior Court. The appropriate legislation was either s 22(a) of the Supreme Court Act 59 of 1959 or s 304(2)(b) read with s 309(3) of the Criminal Procedure Act: S v Venter 1990 (2) SACR 291 (NC) at 294c - d. Although s 316(3) contains a I codification, unamended, of the common-law requirements for adducing evidence on appeal or on remittal (S v Nofomela 1992 (1) SACR 277 (A) at 282f - h, S v Dampies 1999 (1) SACR 598...