S v Ngcobo

• Jurisdiction: South Africa
• Judge: Vahed J and Van Zyl J and Nzimande AJ
• Judgment Date: 27 February 2014
• Docket Number: AR 68/13
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 27 January 2014
• Citation: 2014 JDR 0485 (KZP)

Vahed J:

[1]

On 17 March 2001 the appellant was convicted in the regional court sitting in Ixopo on a charge of rape. At the time the provisions of Section 52 of the Criminal Law Amendment Act, 105 of 1997 required the sentencing phase of the trial to be disposed of in a High Court and the appellant was duly committed to the High Court for that to unfold. On 24 July 2001 the appellant appeared before Sardiwalla AJ who imposed a sentence of life imprisonment.

[2]

Thereafter there were a number of delays, inordinate ones at that, but eventually, on 22 September 2010, Sardiwalla AJ refused the appellant's application for leave to appeal against both conviction and sentence.

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Vahed J

[3]

The present appeal serves before us, leave to appeal against both conviction and sentence having subsequently been allowed by the Supreme Court of Appeal.

[4]

The allegations in the regional court that the appellant had to deal with were that on 6 February 2000, at Sandaneza Location, he intentionally and wrongfully had carnal intercourse with Sindisiwe Mkhize, a mentally-handicapped girl, 13 years old at the time, without her consent. The accused denied the allegation and accordingly tendered a plea of not guilty.

[5]

The medical evidence presented in the regional court was from a Doctor Gardner who examined the complainant on 7 February 2000. During the course of that examination it was obvious to him that the complainant was a mongoloid child and that it was plainly apparent to anyone that she was thus afflicted. His physical examination of the complainant indicated to him that she had sustained a tear on the posterior fourchette with slight bleeding. He was uncertain as to whether the bleeding was from menstruation or from the tear itself. He noted however that the tear was a fresh one. He noted also that the complainant's hymen had been perforated and was swollen as were the walls of her vagina. He concluded that the injuries he observed were consistent with forced vaginal entry.

[6]

The complainant's sister, Xolisile Promise Mkhize, testified that the appellant came to their home on 6 February 2000. He enquired after his brother Stelega and then left after about 5 minutes. The lack of the usual noise of children playing alerted her and she went into a nearby room and found the appellant engaged in sexual activity with the complainant. According to her, he was making up and down

2014 JDR 0485 p3

Vahed J

movements on top of the complainant. The appellant was at first not alerted to her entry into the room and was only interrupted when she enquired as to what he was doing. He jumped up, said he was tempted, and apologized. She then closed the door to that room and summoned persons she referred to as Mthembu and Mbhele. They arrived and during the course of their arrival the appellant was pulling up the complainant's panties. Upon their arrival the appellant fled making his escape through a window. According to her the complainant was taken to see Doctor Gardner the following day. She noticed, upon entering the room, that the complainant appeared to be soiled with semen on her thighs and her vagina and that the appellant himself was also soiled with semen. She told the court that it was obvious to anyone that the complainant was mentally-handicapped because of her mongoloid features.

[7]

Mthembu also testified and largely corroborated the evidence of Miss Mkhize. He saw the semen and also witnessed and heard the appellant's apology. When he arrived the complainant's panty was on the floor but he also witnessed the appellant pulling up the panty on the child.

[8]

Mbhele also testified and he also largely corroborated the evidence of the first two witnesses. There were minor discrepancies particularly with regard to when the appellant was alleged to have pulled up the complainant's panties but, to my mind, those discrepancies were of no moment. They were merely differences which resulted from witnesses who had different vantage points.

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Vahed J

[9]

The appellant testified in his defence and denied the events as testified to by the three state witnesses. He said that he had arrived at the Mkhize homestead to purchase alcohol. He was left in a room while Miss Mkhize went to fetch the alcohol but she returned with the two others with sjamboks and he was assaulted. I pause to mention that the fact that he was assaulted, by primarily Miss Mkhize, with a sjambok was never put to any of the state witnesses. His evidence was that he escaped through the window because of the...