S v Ndlangamandla
| Jurisdiction | South Africa |
| Judge | Sardiwalla J and Masango AJ |
| Judgment Date | 30 November 2018 |
| Docket Number | 57/2018 |
| Hearing Date | 26 October 2018 |
| Citation | 2019 JDR 1072 (MN) |
Sardiwalla J:
Introduction
The appellant was arraigned in the Regional Court, Ermelo, on a charge of rape in contravention of section 3 read with the relevant sections of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007. On 20 October 2017, the appellant, who was legally represented, was convicted on one count of rape. He was sentenced to life imprisonment, his name was entered into the register of sexual offenders and declared unfit to possess a firearm. [1] Subsequently, the appellant successfully applied for and was granted leave to appeal against both conviction and sentence.
Facts as established from the evidence in the court a quo
The case against the appellant was that he raped NM (the complainant) repeatedly during the period of June 2015 to August 2016. At the time of the incidents the complainant was nine years old. The State's case was presented by three witnesses: the complainant, the mother of the complainant KM and NN. The complainant testified in open court.
Their testimonies elicited the following material facts:
The Complainant and the appellant lived together. The appellant is the complainant's stepfather and that the appellant had intercourse with the complainant whilst she was at home.
On the first occasion the appellant entered the bathroom whilst her mother was not at home and instructed her to undress. She refused but the appellant dragged her and undressed her, got under the blankets, spread her legs apart and had sexual intercourse with her. He
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thereafter dressed and left. The appellant instructed her not to tell anyone what had happened to her or more specifically what he had done to her. The next incident was on the sofa, where the appellant instructed her to undress but she refused. He again dragged her, undressed her and had sexual intercourse with her. The third incident took place at night whilst she was asleep. The appellant went under the blankets, spread her legs and had sexual intercourse with her. Afterwards he again dressed up and left. At some stage whilst she was taking a bath her mother noticed that she was bleeding from her vagina and her mother instructed her to continue with her bath. The last incident occurred where the appellant again entered her bedroom and told her to undress, however she bit him and closed the door. The appellant opened the door and assaulted her and when her mother came she explained to her mother that he had assaulted her. When asked about when her mother became aware of the incidents the complainant explained that they had gone to one NN and that this woman had told her mother that she had intercourse with someone. That they wanted to know who it was and that is when she told them that it was her stepfather. The complainant told the Court that her stepfather no longer resides with them and that her mother has taken a protection order against him. Under cross-examination she told the court that she was also raped by a certain Sicelo but that she did not mention this to her mother or to NN at that time because she had forgotten about it. She only mentioned the appellant at the time of the questioning as that had occurred more recently. When her mother asked her about the blood on her panty she indicated that she did not know why she was bleeding and that she did not realise that the bleeding was because of what the appellant had done to her. She
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admitted that she did not tell her mother after the second and third incidences as she was afraid that they would fight. That when her mother had taken her to NN that she heard her mother say that the appellant had told her mother that he had dreamt that her mother was accusing him of having sexual intercourse with her. That when they went to NN that her mother had already taken out the protection order against the accused. She denied that her mother coached her to falsely accuse the appellant. She told the court that she knew nothing of the alleged relationship between her mother and another man. That her mother had taken out a protection order against the appellant because of a traditional doctor that had come to the appellant.
The complainants mother KM testified that was married to or staying with the appellant. She confirmed that she had taken her daughter to NN on 5 May 2017 to be examined and that the appellant had told her that he dreamt she said that he was sleeping with the complainant. She indicated that after she got the protection order against the appellant that he would still come to visit the complainant and had told her not to tell anyone that he had come. He also gave her money. She explained that there were many reasons why she took the complainant to NN some being that he had given her money and also about the dream he told her about, that is what made her suspicious. NN had told her to wait outside whilst she examined the child. She was then asked to come back in and the complainant was asked about who had done this to her. The complainant started to cry and said that her stepfather had done this to her for a while starting in 2015. She confirmed that she had
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seen blood on the complainant's underwear but that she did not relate that to the appellant and that she did not suspect him at that stage. She denied that the protection order was because she had another man and that the bad blood between them was the reason for the charges. In fact she stated that it was the appellant that had another woman.
NN testified that the mother and the complainant had come to see her. The mother requested that she examine the child and that she discovered that the child was no longer a virgin. When she questioned the child as to who had done this to her the child explained that it was the stepfather. When she questioned the child as to why she did not tell her mother the child indicated that her stepfather had asked her not to tell anyone. When she had called the mother back in and told her what the child had said that she started to cry. In fact she had to calm the mother down more than once. The mother explained her concerns as the appellant was HIV positive and was on medication. She confirmed that it was the first time that she had seen the complainant and her mother and that the appellant was not known to her. She also confirmed that the complainant did not tell her about another boy that had raped her when she was still young.
The appellant testified in response to the evidence of the aforementioned witnesses called by the State. His testimony was that he was being falsely accused. However, he could not proffer any reason why the child would falsely incriminate him except to say that the mother was using the child against him because he found her with another man.
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The evidence of the complainant, her mother and NN clearly reveal that she was raped and that the appellant was the perpetrator of the rape. None of the testimonies were contradicted in any material way, nor were any internal inconsistencies identified in their testimonies. In fact, all their testimonies were carefully, coherently and lucidly presented. Both the complainant and her mother withstood brutal and bruising cross-examination. The magistrate in my...
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