S v M

• Jurisdiction: South Africa
• Judge: Nicholson J, Theron J
• Judgment Date: 13 June 2000
• Citation: 2000 (2) SACR 474 (N)
• Hearing Date: 26 October 1999
• Counsel: W M Mkhize for the appellant. N D N Bayi for the State.
• Court: Natal Provincial Division

Nicholson J:

The appellant was charged in the regional court in Vryheid with the rape of his daughter during 1989. The trial commenced on 27 May 1997 and the accused was legally represented and elected to remain D silent at the time of entering his plea of not guilty. At the time of the rape the complainant was six years of age. The complainant testified that during 1989 she slept in the same bed as her aunt and the accused, who also lived in the same house, would come during the night and carry her to his bed, where he would have sexual intercourse with her. This occurred every night for a period of months. The complainant testified that she E reported the matter to her aunt who suggested that the complainant's grandmother be informed. Both the complainant and her aunt did not, however, inform the grandmother as they were afraid of the possible repercussions as they were both dependent on the accused. C

The complainant then went to live with a friend SD and wrote a letter to her grandmother and thereafter went to F stay with her. The letter was handed into court as an exhibit and clearly identifies the accused as the person who took her to his bedroom where he 'abused' her. In 1996 the complainant was staying with her mother when she saw the programme CHILDLINE which concerned abused children and their rights. As a result of watching this programme she made a report to CHILDLINE about what had happened to her. Thereafter the complainant's G mother assisted her to lay a charge at the Vryheid police station.

The complainant's grandmother JM testified for the State and confirmed the report by the complainant in the letter. Mrs M also testified to a time in 1994 when she examined the complainant and observed a white discharge H from the complainant's vagina and what appeared to be 'flesh' hanging from her private parts. She did not do anything about it because she was scared. Her fear arose from the possibility that the injury had been caused by the complainant's father, which meant that it was a 'disgrace' to the family.

Dr Gumbi testified that he examined the complainant on 31 July 1996 and found an irritation of the vaginal walls. I He also noted the fact that the hymen was not identifiable. He identified hypertrophy which is caused by longstanding persistent trauma to the vagina. The findings were consistent with a child who had been sexually abused. The most obvious form of abuse would have been rape. The doctor was not able to state how long ago J the abuse had taken place but it could have taken place when the child was six years of age or as recently as six months ago.

Nicholson J

The accused testified and denied that he had raped the complainant, and he called his two sisters S and ZM to A testify. On the version of the complainant, ZM was present when the accused took the complainant to his bedroom to rape. The significance of the evidence of S was that she alleged that she was staying with the accused and the complainant at the relevant time that the sequence of rapes took place, and not Z. The reason B for tendering this evidence was to rebut the evidence given by the complainant that it was Z who was staying in the house at the time. S testified that during her stay she did not notice anything strange about the behaviour of the complainant nor did she ever report that she was sexually abused by her father.

It will be recalled that the complainant testified that she reported the rape to Z but that she had declined to do C anything about the rapes because of fear of the accused, who was responsible for her maintenance. In her evidence, Z disputed staying with the complainant and the accused at the relevant time, but she did concede that the complainant reported to her in 1995 that the accused had raped her. It should be noted that at the time of the D testimony both Z and S were financially dependent on the accused.

The magistrate disbelieved the accused, and his two sisters, and found the complainant to have been an outstanding witness. He also believed the evidence of the complainant's grandmother to whom the complainant E had written the letter making the report of the abuse. He found corroboration in the letter she wrote to her grandmother and the report she made to the grandmother and her aunt Z. The magistrate disbelieved the accused and found that the proffered reason why the complainant would falsely implicate him, ie his new relationship with a woman by the name of A, incapable of belief. F

The magistrate also commented on the fact that under cross-examination the accused added a further reason, namely that the complainant's mother and grandmother had influenced her to incriminate him. This was never put to the grandmother or the complainant. The magistrate noted how careful Mr Khuboni, who represented the accused, was in conducting the defence. He found that it was inconceivable that Mr Khuboni would have G inadvertently omitted to put what was a very important detail to the two State witnesses. The magistrate convicted the accused and sentenced him to 10 years' imprisonment. An application for bail pending an appeal was refused.

An application was made by the accused to the High Court on 16 April 1998, to lead the evidence of two further H witnesses, namely EK and SN. The application was granted and the case was remitted for the hearing of the evidence on 12 January 1999. Prior to leading the evidence of the two defence witnesses Mr Mkhize, counsel who then appeared for the accused, applied for the recall of the complainant for further cross-examination in light I of the evidence to be led. In the application for leave to lead further evidence the allegation was made that 'it will be in the interests of justice that the contents of annexure A and annexure B (the affidavits containing the further evidence) be put to L (the complainant) to confirm or deny the same to enable the Court to arrive at a just decision.' J

Nicholson J

A The order of the High Court referring the matter for further evidence was silent on the issue as to whether any other witness could be called or recalled. The Court held over the decision as to the recall of the complainant on the basis that the magistrate would first hear the evidence tendered by the defence and then determine whether B any witnesses should be recalled or rebutting evidence be allowed.

The evidence of EK was to the effect that on 14 August 1996 the accused had approached her and requested her to accompany him to see the complainant at the Lakeside School. The accused asked the complainant whether she had laid a charge against him and when she answered in the affirmative she was asked the reason C for this. The reason tendered by the complainant was that her mother and grandmother had told her to lay the charge and that the accused was not her father. It transpired during cross-examination that EK is the accused's aunt. In the application to lead further evidence an affidavit was filed by SN to the effect that during 1993 when he D was 14 years of age he met the complainant and fell in love with her. At that stage the complainant would have been some 10 years of age. He alleges that he had sexual intercourse with her once in 1993, and continued to have intercourse with her in 1994, 1995 and 1996 at intervals of about three months. Thereafter the complainant E was taken to Johannesburg by her mother and the relationship ceased. SN testified under oath and was cross-examined.

Before his evidence was led, Mr Mkhize applied for a special entry in terms of s 317 of the Criminal Procedure Act 51 of 1977 by reason of an irregularity committed by the investigation officer Captain Zwane. The nature of F this irregularity became apparent from the evidence of SN. The affidavit of SN setting out the fresh evidence was handed to Captain Zwane who arrived on 11 August 1998 at Ngema's school and arrested him for having sexual intercourse with a girl under the age of 14 years. I interpolate to mention that Captain Zwane was probably thinking of s 14(1)(a) of the Sexual Offences Act 23 of 1957, which makes the unlawful carnal intercourse of a G male person with a girl under the age of 16 years a criminal offence. Captain Zwane asked SN if he had made the affidavit, which was annexed to the application to reopen the case, and was assured that he had. SN said that the bail of R4 000 would be fixed and he was then taken to Mondlo police station.

H Captain Zwane told SN that the affidavit he made was wrong and that he would put SN in custody for 40 years if he did not change it. SN declined to change his statement and was then taken to his grandmother's house where the policeman explained that SN had been arrested for having intercourse with a girl who was under the statutory age. Apparently the policeman then went and spoke to the complainant who denied having any I knowledge of SN. Captain Zwane then informed SN of this fact and also told him that if he did not tell the truth he would lock him up and he would not be able to write exams at school. Captain Zwane then increased the amount of bail to R10 000, which the grandmother and SN were not able to pay. SN then made another sworn statement J which differed in numerous material respects with the affidavit. That statement reads as follows:

Nicholson J

'I am an adult male with the above given particulars and I'm the person who submitted a statement on 1997.10.30 in connection with A an appeal of JM. I wish to state that I know LPM because I used to see her at her father's homestead. I was attending the same class with TM who is the uncle of L. I was not in love with her and I have never had sexual intercourse with her.

On Sunday 1997.10.26 I was from the church when I was on the way to my homestead I met TM and R who surname is unknown to B me. They told me that there was a letter from J at their homestead...