S v Mayisela

• Jurisdiction: South Africa
• Judge: Makgoka J and AP Laka AJ
• Judgment Date: 28 March 2013
• Docket Number: A827/2011
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 05 October 2012
• Citation: 2013 JDR 0752 (GNP)

Makgoka J:

[1]

The appellant stood trial in the regional court, Ermelo, on one count of raping a mentally retarded woman. In the alternative he was charged with one count of sexual assault. He was legally represented during the trial. Despite his plea of not guilty, the

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trial culminated in his conviction, upon which he was sentenced to a term of life imprisonment. The appellant appeals against the conviction and the sentence.

[2]

The State led the evidence of two witnesses, CD, a nine-year old girl and her uncle, JD. The State also handed in a medical report (the so-called J88 report), as was well as a pre-trial assessment report, in which it is concluded that the rape survivor, DH, who is the nominal complainant, was mentally retarded. As a result, she was not able to give oral evidence. For the sake of convenience I shall refer to Ms. Habile as 'the complainant'. The appellant testified in his own defence and called no further witnesses.

[3]

CD, who testified with the help of an intermediary, stated that the appellant came to her home on Saturday, 14 February 2009, looking for her mother, who was not there. The complainant, her aunt, was there. The appellant took the complainant by hand and they went into a tin shack. She peeped through a hole in the corrugated iron and saw the appellant undressing the complainant of her panties. The appellant also undressed himself of his trousers and underwear. He laid the complainant on the bed, climbed on top of her and 'bumped' on top of her. She ran to her uncle and made a report to him, who suggested that she should call her mother. JD testified that on the day of the incident he was at home when the appellant came looking for his sister. He noticed that the appellant pulled the complainant towards the shack and they went inside. After approximately 10 minutes CD made a report to him that the appellant was doing 'something wrong'. He sent CD to call her mother.

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[4]

The appellant's version was that after he did not find CD's mother at her shack, and was about to leave, the complainant called him into the shack. Once inside the shack, she undressed herself and he did likewise. He wanted to have sexual intercourse with her. He touched her private part and at that moment he noticed that there was 'something wrong' with her. He left without having sexual intercourse with her. It was not in dispute during the trial that the appellant knew the complainant to be mentally retarded.

Jurisprudential framework

[5]

Before I consider the merits of the appeal, it is prudent to set out the jurisprudential framework within which cases such as the present are to be considered. In considering cases of alleged sexual assault, the starting point is what was stated by the Supreme Court of Appeal (SCA) in Stevens v S[2005] 1 All SA 1 (SCA) Para 1:

'Courts in civil or criminal cases faced with the legitimate complaints of persons who are victims of sexually inappropriate behaviour are obliged in terms of the Constitution to respond in a manner that affords the appropriate redress and protection. Vulnerable sections of the community, who often fall prey to such behaviour, are entitled to expect no less from the judiciary. However, in considering whether or not claims are justified, care should be taken to ensure that evidentiary rules and procedural safe-guards are properly applied and adhered to.'

[6]

In S v Vilakazi2009 (1) SACR 552 (SCA) pars 21 and 22 the following was said:

'The prosecution of rape presents peculiar difficulties that always call for the greatest care to be taken, and even more so where the complainant is young. From prosecutors it calls for thoughtful preparation, patient and sensitive presentation of all the available evidence, and meticulous attention to detail. From judicial officers who try such cases it calls for accurate understanding and careful analysis of all evidence. For it is in the nature of such cases the available evidence is often scant and many prosecutions fail for that reason alone...'

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[7]

The issue in this appeal is whether or not there was penetration – a key consideration which has a bearing on the conviction. This aspect is dependent on the evidence of CD, who was a single witness. In terms of s 208 of the Criminal Procedure Act, 51 of 1977, an accused may be convicted of any offence on the single evidence of any competent witness. The court can base its findings on the evidence of a single witness, as long as such evidence is substantially satisfactory in every material respect [1] , or if there is corroboration [2] . See further, R v Mokoena1956 (3) SA 81 (A) at 85; S v T1958 (2) SA 676 (A) at 676 S v Sauls and Others1981 (3) SA 172 (A) at 180E-G; and S v Banana 2000 (2) SACR 1 (ZSC).

[8]

Furthermore, CD was a child witness. When dealing with the evidence of children, our courts have developed a cautionary rule which is to be applied to such evidence. The court must therefore have a proper regard to the danger of an uncritical acceptance of the evidence of a child witness. See the rationale for this approach in R v Manda1951 (3) SA 158 (A) at 163E-F. The State's case also consisted of circumstantial evidence as there is no direct evidence of penetration. The cardinal rules when it comes to circumstantial evidence are trite, and were laid down in the well-known case of R v Blom[3] , namely:

(i)

the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn;

(ii)

the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not

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exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.

[9]

Back to the facts of the present case. It was contended on behalf of the appellant that the State had failed to prove that the appellant penetrated the complainant. Furthermore, so it was argued, there was lack of medical corroboration of rape, viewed also in light of the fact that the complainant did not testify. The State supports the conviction.

[10]

Before I consider the submissions...