NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN CASE NO: CA&R 14/2018. In the matter between. Appellant.

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1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy NOT REPORTABLE IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN CASE NO: CA&R 14/2018 In the matter between E V Appellant versus THE STATE Respondent APPEAL JUDGMENT HARTLE J

2 2 [1] The appellant appeals against both his conviction on a single count of the rape of his own daughter, nine years at the time of the commission of the offence, and the corresponding sentence of life imprisonment imposed upon him by the regional court sitting in Port Elizabeth. [2] The chief ground of appeal in respect of the conviction is that the trial court erred in its assessment of the evidence and in concluding that the state had proved the appellant s guilt beyond reasonable doubt. [3] Inter alia it was contended in the notice of appeal that the court had failed to properly analyze or evaluate the evidence of the state witnesses and had made factual findings which were not warranted; it had too readily accepted the evidence of the single child witness with regard to the incident of rape and the identification of the perpetrator whereas it should have found her testimony wanting or unreliable or indeed even unacceptable or improbable; it had mistakenly accepted the report of the doctor who medically examined the child on the basis of it being without reservations whereas it had been placed in contention during the trial; the appellant was denied an opportunity to test the examining doctor s findings because he was deceased by the time of the trial whereas information in the report, properly elucidated, might have redounded to the appellant s benefit and supported

3 3 his defence; it had ignored material self-contradictions in the child s evidence or contradictions between her evidence and that of her maternal grandmother to whom she reported the rape and; it had no warrant to reject the appellant s evidence that he did not rape his daughter at all as not being reasonably possibly true. [4] The child testified that on a night her father had come to sleep in the bed with her toe maak hy my stout. Thereafter he put his piepie into her noesie and also put his piepie into her anus. [5] The appellant asked her to get on top of him, but she did not do so. The appellant picked her up and toe maak hy my stout. [6] She reported the incident the following morning to her grandmother, E N. [7] Ms. N confirmed that a report had been made to her by the child during the late afternoon on the day following the incident that the appellant had had sexual intercourse with her. She promptly inspected the child s vagina and found it to be wide open. [8] The medical report which was handed in by consent as Exhibit B2 indicated forceful penetration due to tears in the labia majora and labia

4 4 minora as well as tears in the posterior fourchette and a rash in the perineum, but no evidence of anal penetration. [9] The appellant denied ever raping the child and feebly put the blame for the injuries on his son, R who had purportedly kicked the complainant on her noesie. [10] Mr. Charles who appeared on behalf of the appellant fairly conceded during argument, despite what the notice of appeal says, that the medical report is not in dispute. He agrees with the assessment that the complainant suffered injuries to her vagina which warranted the conclusion drawn by the examining doctor, based on the nature of the injuries observed by him at the time, that the child must have been sexually molested. The doctor found this proven by: - Tears in the majora labia and minora. - Tear in posterior fourchette. - Rash in the perineum could be as a result of forceful contact. - Purulent PV discharge commonly seen in sexually active. [11] Despite his concession Mr. Charles yet held out for the contention that her older brother might have been the one responsible for causing the injuries to the complainant s vagina because she had admitted that he had

5 5 once before the day of the incident kicked her on her noesie and that he would sometimes hurt her there. This however belies the true nature of the injuries observed in the child s vagina and how by necessary implication she must have sustained them. [12] Mr. Charles further made much of the suggestion that the complainant did not explain or give any context to what she understood a noesie to be or what she meant to convey by the expression toe maak hy my stout. He asserted that because of her age and limited understanding in relating the act of sexual penetration that she might have been mistaken in thinking that the applicant actually raped her. This submission too has no force given the examining doctor s findings that the child must have been sexually penetrated in her vagina. [13] Concerning the submission persisted with in argument that the trial court did not treat the complainant s evidence with sufficient caution, the magistrate was instead astute to recognize the dangers of relying on the evidence of a single child witness and in my opinion dealt with every possible contingency. [14] He noted firstly that there had been a significant time lapse since the incident which might account for a blurring of the finer details. Next, he

6 6 discounted that the child might have fantasized about her ordeal by referring to the corresponding evidence of her grandmother and to the objective medical evidence which co-incidentally confirmed her own examination of the child. In this regard he noted that: E N se getuienis is as volg: Sy verwys na n mededeling wat die klaagster aan haar gemaak het. Sy sê vir my haar boudjies brand. Sy het na haar vagina verwys. Ek kyk toe na haar vagina, sien dit is verskriklik oopgerek. Haar getuienis met betrekkig tot die beserings word gestaaf en aagevul deur bewysstuk B2, die dokter se verslag, soos vervat in paragraaf 3, getitled Conclusions. Die feit dat daar wel beserings was, was nooit deur die verdediging betwis of bevraagteken nie. Die klaagster kon dus nie gefantaseer het oor die seksdaad self nie omdat die medieseverslag haar weergawe staaf en die van Me N, alhoewel nie met betrekking tot wie die daad sou gepleeg het nie. [15] With regard to the dictum in S v S 1 that children do not fantasize over things that are beyond their own direct or indirect experience, he was perceptive to pick up on a very significant piece of information in the child s testimony, which in my view is hardly within the contemplation or natural imagination of a nine-year-old child with no sexual experience: (1) SACR 50 (ZS) at page 57 a b.

7 7 Die volgende is van belang in hierdie saak: Toe kry hy vir hom vaseline, toe sit hy dit op hom piepie en toe sit hy dit ook op my, op my ook. Sit hy dit by my noesie, verwysende naar haar vagina. [16] As for the child s confusion over time, place and the sequence of events, especially when in relation to the incident she reported it to her grandmother, he observed that the defence had unreasonably and repeatedly questioned the child about these details that were immaterial in the whole scheme of things, confounding her in the process, but that she had consistently held to what the crux of the matter was. [17] In this respect her noted that: Mnr Crouse het telkemale vrae herhaaldelik oor en oor gevra en dan ten minste drie vier keer binne n minuut aan die klaagster die vrae gestel, maar jy het nou so gesê dan sê jy so en aan haar gestel dat sy nie die waarheid praat nie. Teen die tyd wat die vraag klaar gestel is het die klaagster al lankal vergeet van wat die oorspronklike vraag was omdat die vrae te lank en te omsamehangend was. Sy het gehou by dit wat die crux van die saak was. [18] He pertinently rationalized why, despite the apparent shortcomings in her evidence, these were more imagined than real and could be overlooked or explained away:

8 8 Mnr Crouse gesukkel het om n logiese verloop van die gebeure uit die klaagster te kry met betrekking of the voorval nou in die dag of in die nag sou plaasgevind het. En waar dit sou plaasgevind het en hoekom sy nie die voorval aan ouma Hazel sou rapporteur het nie. Daarvoor het sy n verklaring. Sy was bang dat haar pa wat die boosdoener was sou hoor as sy die voorval aan die ouma rapporteur, dis nou ouma H. Sy bly egter konsekwent uit presies wat die beskuldigde gedoen het en ontken heftig dat dit haar broer, R, is wat verantwoordelik was. Sy getuig dat die ergste wat hy was of wat hy gedoen is was deur haar te skop. Die klaagster was ten tyde van die voorval 9 jaar oud en toe sy getuig het het sy geantwoord sover dit vir n 11 jarige moontlik was om te antwoord. Sy het herhaaldelik getuig dat sy vir haar pa gesê het dat hy moet ophou en dat sy dit nie wil doen nie. [19] Far from making himself guilty of the misdirection complained of, the magistrate in my view properly and carefully analyzed the evidence of the complainant, was alive to her limitations as a child witness, and found the necessary safeguards in the totality of the evidence and the probabilities. [20] I am therefore satisfied that the appeal against the conviction is without merit.

9 9 [21] Concerning the sentence of life imprisonment imposed, Mr. Charles urged upon the court to find that it was overly harsh in its effect and that the trial court had failed to properly consider the appellant s personal circumstances and/or had over-emphasized the seriousness of the offences and the interests of society. [22] In this regard, the appellant is a father of three children, a sole breadwinner, a spray painter (unemployed at the time of the offence), and 43 years old. He spent three years in custody awaiting trial. He was separated from the child s mother (a second marriage). It is common cause that she neglected the child (and her own from a previous marriage) as a result of a drug habit. [23] He submitted that the cumulative effect of these factors ought to have persuaded the trial court to deviate from the maximum sentence of life imprisonment. [24] It is so that not affording proper weight to a factor relevant to the imposition of sentence, such as the accused s personal circumstances, and affording undue weight to the seriousness of the crime can constitute a

10 10 misdirection justifying interference by an appeal court, 2 but in this instance, the magistrate meticulously considered all the relevant factors and brought these carefully into the balance. (Both a victim impact report and a comprehensive pre-sentence report were helpfully placed before him reflecting upon the rival interests of the appellant and his daughter as well as those of the community in relation to the crime committed.) He also cogently explained why it was not one of those situations where he could find truly convincing reasons to depart from the minimum mandatory sentence of life imprisonment. [25] The magistrate also studiously reflected upon the sentiments of and the approach of the courts adopted in sentencing child rapists particularly where there is a familial relationship between the child and the rapist and the violation entails a breach of the sacred family bond. [26] I refer to the very apposite and sensitive comments of Cameron JA (as he then was) in S v Abrahams 3 in describing the particularly reprehensible nature of the crime of rape committed by a father against his own daughter. 2 See also the dictum of Marais JA in S v Malgas 2001 (2) SA 1222 (SCA) at par 12 setting out the circumstances entitling a court of appeal to intervene in a sentence even in the absence of material misdirection. A court is also justified in interfering with a sentence imposed by a trial court where there is a stark disparity between its sentence and the sentence which the appellate court would have imposed had it been the trial court (1) SACR 116 (SCA) at 123.

11 11 In that matter the court had expounded upon the aggravating feature that the father had been determined to precede other young males in any possible carnal access to his daughter. He noted that this attitude reflects an approach to women, and to daughters in particular, as objects or chattels not merely to be used at will, but once the first entitlement had been exercised, to be discarded for further similar use by others. In the scenario applicable in casu the appellant sexually assailed the child in his care who had been abandoned by her mother from whom he was estranged, knowing well that both of them were HIV infected. It also made little difference to him that the child s paternal grandmother was in the room next door. It did not appear to come as a surprise to the trial court, when it emerged during sentence proceedings, that even she regarded the relationship between father and daughter as inappropriate and a cause for concern. Apparently motivated by lust and taking advantage of an opportunity created by the caring arrangement, somewhat different to the situation in S v Abrahams where the accused was ostensibly sexually jealous and possessive of his daughter, the fact that the appellant abused his position as a father is however equally egregious and unacceptable. In the words of Cameron JA: Of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of

12 12 authority and command over a daughter. But it is a position to be exercised with reverence, in a daughter's best interests, and for her flowering as a human being. For a father to abuse that position to obtain forced sexual access to his daughter's body constitutes a deflowering in the most grievous and brutal sense. That is what occurred here, and it constituted an egregious and aggravating feature of the accused's attack upon his daughter. [27] Further, highlighting the misconception that rape within a family is somehow less reprehensible than rape outside of the family, Cameron JA aptly explains why this is so and again re-enforces the peculiarly reprehensible nature of such an assault by a parent on a child within a family setting warranting particular attention in regard to deterrence and retribution in the sentencing process: (a) First and obviously, a family member is also a member of the wider public and equally obviously as deserving as the rest of the public of protection against rapists, including those within the home. Indeed, where a rapist's victim is within his family, she constitutes the part of the public closest to, and therefore most evidently at risk of, the rapist. (b) Second, rape within the family has its own peculiarly reprehensible features, none of which subordinate it in the scale of abhorrence to other rapes. The present case illustrates them with acute force. The rapist may think the home offers him a safe haven for his crime, with an accessible victim, over whom he may feel (as the accused did) he can exercise a proprietary entitlement. Though not the case here, a family victim may moreover for reasons of loyalty or necessity feel she must conceal the crime. A woman or young girl may further internalise the guilt or blame associated with the crime, with lingeringly injurious

13 13 effects. This is particularly so when the victim is the rapist's own daughter, and the more so when the daughter is of tender years. (c) Third and lastly, the fact that family rape generally also involves incest 'Love' (inappropriately) thus expressed becomes the negation of love, and the violation of the trust that should sustain it extreme. Its effects may linger for longer than with an extra-familial rape. 4 [28] It can barely be contended in my view that the rape of a child by her own father is not within the category of the worst kind of offence that can be committed in a civilized society. The impact to the child as a result was also significant. [29] I am in agreement that the circumstances of the appellant even taking them to their enth (it was suggested on the appellant s behalf at the trial that the use of drugs and his dysfunctional relationship with the child s mother might have played a role in the commission of the offence), and accepting notionally that these factors could have detracted from the appellant s moral reprehensibility, do not powerfully enough mitigate against the more serious features at play in this matter. I am satisfied that the court committed no misdirection. I find an absence of any weighty factors compelling the 4 S v Abrahams supra pages at par [23]. See also S v E 1992 (2) SACR 625 A at 632; S v D 1995 (1) SACR 259 (A) at 260 g; De Reuck v Director of Public Prosecutions (WLD) & Others 2003 (3) SA 389 at 397, par [10], S v Blaauw 2001 (2) SACR 255 at 259 i 260 i; S v Jansen 1999 (2) SACR 368 (K) at 378 g 379 b; S v McMillan 2003 (1) SACR 27 (HHA) at 34 a c.

14 14 conclusion that the application of the prescribed sentence was unjust in all the circumstances. [30] There is accordingly no merit in the appeal against sentence either. [31] In the result I issue the following order: 1. The appeals against both conviction and sentence are dismissed. B HARTLE JUDGE OF THE HIGH COURT I AGREE N P JAJI JUDGE OF THE HIGH COURT

15 15 DATE OF APPEAL : 29 August 2018 DATE OF JUDGMENT: 7 September 2018 Appearances: For the Appellant: Mr. Charles, Justice Centre, Grahamstown. For the Respondent: Mr. Els, Director of Public Prosecutions, Grahamstown.