S v Ramushweu

• Jurisdiction: South Africa
• Judge: EA Moolla AJ
• Judgment Date: 16 July 1999
• Citation: 1999 JDR 0502 (V)
• Hearing Date: 22 February 1999
• Court: Venda High Court
• Docket Number: A55/98

EA Moolla AJ :

At the conclusion of a trial in a regional Court the Appellant was convicted of the offence of rape. He was sentenced to a term of imprisonment of ten years. His appeal against both the conviction and sentence serves before us.

The record of the evidence is as follows : During or about May 1998 the Complainant who was at the time a nine year old girl, had gone to play at the kraal of her grandmother. She was there with her two sisters, namely Tshifhiwa and Matodzi. Her grandmother had gone to fetch firewood and another grandmother had gone to work. The appellant who is alleged to be her uncle arrived subsequently to dig a pit for a toilet at the home of her grandmother. He sent one sister to the kraal of an uncle to fetch water.

1999 JDR 0502 p2

EA Moolla AJ

After the said two sisters had left he took the Complainant to the toilet pit which he had dug up. He first removed her panty and her words, "put his penis on her". He did so by grabbing her and making her lie down. After he put his penis on her he began to "bump her". At first she stated as follows in response to the questions of the Prosecutor:-

Question :	Was your vagina penetrated ?
Answer :	No. He put it next to my vagina.
Question :	Was it, did you feel it as it was in your vagina.
Answer :	Yes.
Question :	Was it hard/soft ?
Question :	It was hard.
Question :	Now what was happening ...
Answer :	He was only making up and down movements

Upon further questioning the Complainant's evidence went as follows:

Question :	Where was it ?
Answer :	It was on my vagina.
Question :	Inside.
Answer :	It was not too deep.

She further testified that there was a white discharge from his penis. He thereafter wiped her vagina and left her before her sister arrived.

In cross-examination she told the Court that she did not tell anyone about the incident because her parents had told her not to;

1999 JDR 0502 p3

EA Moolla AJ

Also that once before he sexually molested her in a similar manner. However it appears that he was charged in respect of that conduct. It is appropriate to record in this judgment that it appears from the record of the Court a quo that when the Complainant gave this evidence she began to cry and the Court requested the mother to stand next to her as an act of re-assurance.

The Complainant's evidence was preceded by that of her mother Annetjie Ramusunu. Her evidence is that on the 1st May 1997 she was approached by her 9 year old daughter, the Complainant in respect of this Appeal, who informed her that she wanted to discuss something with her. The Complainant thereafter hesitated until she was coaxed into speaking her mind. She thereafter stated that the Appellant had had sexual intercourse with her. The mother asked the Complainant how this had happened; she gave the mother a demonstration of what had transpired. The mother, who suffers from heart and a blood pressure condition, was so shocked at this revelation that she urinated there and then. She then called her son and asked the Complainant to repeat what had happened, whereupon the Complainant began to cry. She nevertheless related the story again. As the mother had to report to work the grandmother took the Complainant to the hospital for an examination and thereafter the matter was reported to the police.

Thereafter the Prosecutor requested the leave of the Court to hand in the medical report prepared by the medical practitioner pursuant to the examination of the Complainant. The Court enquired from the Appellant whether he had any objection to the report being admitted in evidence without the oral evidence of the preparing medical practitioner. The appellant agreed. The Appellant, in his grounds for appeal, now also seeks to attack the weight attached to this evidence by the trial Court. This Court will deal with this ground of appeal specifically in the course of its judgment.

The appellant elected to give evidence in his defence but called no witnesses. His evidence in brief is that the Complainant's evidence is a fabrication. He had heard that the Complainant liked to act like a woman. He did not know why the Complainant

1999 JDR 0502 p4

EA Moolla AJ

would lie in his manner; further that it was physically impossible to have had sex with her in the pit because it was not long. He was cross-examined by the Prosecutor. He

could not comment on how the Complainant came to suffer from the genital inflamation which was found by the Doctor. The Appellant denied that he had molested the Complainant but argued that it could have been done by one of her play mates.

Mr Klaff, who appeared on behalf of the Appellant, riled lengthy and substantive grounds of appeal and heads of argument. For the reasons set out hereunder we are persuaded that some of the arguments have intellectual merit whilst we remain unpersuaded by the others.

On the day of the hearing of the appeal Mr Klaff raised for the first time, without reference to such argument both in his grounds of appeal and the heads of argument, the alleged gross irregularity committed by the trial Magistrate in not following properly the procedure set out in Section 162 and 164 of the Criminal Procedure Act. This ground of appeal had not been raised in the Appellant's written notice of appeal nor referred to in the heads of arguments. In the interests of justice we nevertheless permitted him to argue this point in order to avoid a miscarriage of justice.

In essence this appeal appears to be predicated on two grounds, namely:

1.

The cumulative nature of the proceedings resulted in the Appellant not receiving a fair trial in violation of his constitutional right;

2.

That the guilt of the Appellant had not been proved beyond a reasonable doubt and that the Appellant should accordingly have been given the benefit of such doubt.

1999 JDR 0502 p5

EA Moolla AJ

In terms of Section 162 of the Criminal Procedure Act

"No person may be examined as a witness in criminal proceedings unless he is under oath... "

Section 164(1) of the Criminal Procedure Act reads as follows:-

"Any person may be admitted to give evidence in criminal proceedings without taking the oath or making an affirmation provided that such a person shall in lieu of the oath or affirmation be admonished by the presiding Judge or judicial officer to speak the whole truth..."

As pointed out by Mr Klaff it would appear from the record that the Magistrate did not first conduct an enquiry whether the Complainant was capable of understanding the meaning of an oath and the taking of the oath.

The Appellant's contention is that it was peremptory for the Magistrate to conduct this enquiry first and only if he found that the Complainant did not understand the nature and import of the oath may the witness be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation, provided that such a person may in lieu of such oath or affirmation be admonished by the presiding Judge or...