JUDGMENT. [1] The appellant was charged with rape in contravention of s 3 of the Criminal

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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 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN CASE NO: CA217/2013 DATE HEARD:07/10/2014 DATE DELIVERED: 28/10/2014 In the matter between KHAYALETHU MHLAHLO APPELLANT and THE STATE RESPONDENT JUDGMENT ROBERSON J:- [1] The appellant was charged with rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, in that he had committed an act of sexual penetration with the [ ] year old complainant by penetrating her vagina with an unknown object or body part. He was convicted as charged and sentenced to 20 years imprisonment. This appeal lies against his conviction only, with the leave of the trial court.

2 2 [2] It was not in dispute that in view of her age, the complainant was not competent to testify. [3] The complainant s mother, Ms P. N., testified that on 25 November 2012 at about 4 pm she washed the complainant, including what was referred to as her genitalia. She did not notice anything wrong with the complainant s genitalia, nor did the complainant complain of any pain or discomfort in her genitalia. The complainant had in the past suffered from a rash on her genitalia and would tell her about it. There was no rash on this occasion. She used a washing rag to wash the complainant s genitalia but did not rub them with the rag. [4] Ms N. then prepared food for the complainant and her brother, [..] year old A. She told them that after they had finished eating they should go and spend the night at the home of her friend Ms T. J., who lived about 100 metres away. They had spent the night at Ms J. s home on previous occasions. Ms N. left the children while they were still eating. [5] The next morning A. and others made a report to her, as a result of which she went to Ms J. s home and following information received there, laid a charge of rape against the appellant. She had seen the appellant at Ms J. s home on prior occasions. She and the complainant were taken to hospital that same morning. [6] A., who was admonished to speak the truth, testified and confirmed his mother s evidence that she had instructed him and the complainant to spend the night at the home of Ms J. He and the complainant walked to Ms J. s home, where

3 3 they found Ms J., her mother, her child, her niece or nephew, a person he called the grandfather, and the appellant. The children watched television and at some stage A. was sent to fetch a jersey for the complainant. The complainant fell asleep on the couch in the room where they were watching television. She was covered with a blanket. The other children went into another room and watched television there, leaving the complainant asleep on the couch, and the appellant sitting on another couch. (It appears from a sketch plan of the house that the room with the two couches in it was called the dining room.) Everyone else in the house had retired to their bedrooms. [7] While watching television in the other room, A. heard the complainant crying and went to the dining room where she had been left sleeping. She was lying on her back on the same couch. Her trousers and her panties had been removed from one of her legs. The appellant was sitting on the couch (presumably the other couch) rolling a cigarette. A. woke up Ms J., who switched on the light in the dining room and asked the complainant what was wrong. The complainant pointed at the appellant. Ms J. told the appellant to leave, which he did. The next morning A. reported the incident to his mother. [8] It was put to A. in cross examination that the appellant would say that he never saw A. or the complainant that night, that the complainant did not point at him, and that he was not chased out of the house by Ms J. A. disputed this version. [9] Ms J. testified that she resided at her home with her two children, boys aged [ ] years and [ ] years, her mother, and her stepfather, who is [.] years old.

4 4 Ms J. slept in one bedroom with her children, and her mother and stepfather slept in the second bedroom. [10] On the evening of 25 November 2012 the appellant, who was a friend of Ms J. s stepfather, was a visitor at her home. He and her stepfather were drinking alcohol and the appellant was very drunk. The complainant and A. also arrived. Ms J. sent A. to fetch a jersey for the complainant. She noticed that the complainant was becoming drowsy and she covered her with a blanket, and left her to sleep on the couch. At no stage did the complainant leave the house from the time of her arrival until she fell asleep on the couch. Ms J. s mother and stepfather went to bed, and Ms J. went into her room, leaving A. and the other children watching television. The front and back doors of the house were locked. [11] In her room Ms J. conversed with the appellant. She thought she had fallen asleep while doing so and was woken when the children came into her room. A. told her she should come and as she left her room she encountered the appellant who was rolling a cigarette. She found the complainant leaning against the couch crying, with her trousers and panties removed from her left leg. When she asked the complainant what was wrong, she pointed at the appellant. appellant what had happened but he did not answer her. Ms J. asked the She examined the complainant but found nothing untoward. She chased the appellant from the house and took the complainant to sleep with her in her room. She did not know if her stepfather had woken up after he went to bed but if he had been drinking he would usually only wake up the next morning.

5 5 [12] It was put to Ms J. during cross-examination that the appellant admitted that on that evening he was at her home seated on the couch watching television, but that he did not see a child there, although he did not dispute that a child was there. It was further put that he had fallen asleep and woke up to go to urinate and that is when he met her. Ms J. disputed this version. [13] Ms Saliswa Ngongweni, a forensic nurse, examined the complainant on 26 November 2012 in the afternoon and recorded her findings and conclusions in the J88 form. She is the assistant director of nursing at Cecilia Makiwane Hospital in Mdantsane. She has extensive qualifications: a diploma in general nursing science; a diploma in nursing midwifery; a diploma in psychiatric nursing science; a diploma in community health nursing science; a degree in nursing science education and nursing administration; a university certificate in basic counselling; a university certificate in advanced counselling; and an advanced diploma in forensic nursing science. She has been requested, as she expressed it, a series of times by the police to examine rape victims and provide reports. [14] She testified in confirmation and elaboration of her findings and conclusions following her examination of the complainant, as recorded in the J88 form. The complainant became hysterical and cried when there was an attempt to examine her genital organs, stopped abruptly while relating the incident, and refused to be examined. These symptoms indicated trauma. Ms Ngongweni nevertheless did manage to conduct a gynaecological examination, during which the complainant showed signs of pain, cried, and closed her legs.

6 6 [15] The para-urethral folds and the inner aspects of the labia majora were red. The hymen was annular with scanty swollen tissue. There was mild swelling, bruising, and redness of the hymen, and a cleft at 3 o clock in the hymenal tissue. The redness noted was probably a result of friction or the introduction of an object. It was possible that the redness of the hymen could have been caused by a child putting her finger inside her genital organs. The bruising of the hymen was probably caused by an object which was not well accommodated by the opening of the hymen. The hymen becomes overstretched in trying to accommodate an object and when it returns to its condition after being overstretched, hymenal tissue is scanty or minimal, and rounded. The rounded appearance indicated repeated entry into and withdrawal from the hymenal tissue. [16] Ms Ngongweni explained that a cleft is a defect, which according to her experience and the relevant literature is not congenital. The penetration by an object causes strain on the inner circular muscle which forms and holds the shape of the hymen. The circular muscle cracks and because it is circular it cannot close the gap caused by the cracks and a V-shaped cut or cleft results. When it was put to her that the cleft was merely a fissure and a malformation, Ms Ngongweni responded that according to her knowledge and experience there is a vast difference between a cleft and a fissure. There was no rupture of the hymen. Ms Ngongweni was of the opinion that an object penetrated the complainant up to and including the hymen. [17] The diagram of the genital organs in the J88 form noted excoriations which Ms Ngongweni said were in the posterior fourchette. She explained that an excoriation is the tearing off of the top layer of a thin covering of the flesh. During

7 7 such tearing off the covering may split and result in scattered flaky tissue. These excoriations may result from the insertion of an object, depending on the heaviness of the impact. An excoriation cannot be caused by a sharp object. The excoriations, taken together with the other injuries, were not caused by a rough wash rag. [18] No bleeding was observed in the complainant s genital organs. Ms Ngongweni explained that bleeding depends on the severity of the injuries and if the injuries are minor, bleeding can cease in less than an hour. When asked about the probabilities of no bleeding when a 4 year old child is penetrated by an adult, she said that a 4 year old female child still has the mother s gynaecological hormones which make the flexibility of the hymen more accommodating. Bleeding will also depend on the aggressiveness of the penetration. She did not record in the J88 form that the injuries reflected an aggressive penetration and concluded that there probably was no bleeding. She agreed that the smaller the object was which was inserted, the less severe the injuries would be. [19] Ms Ngongweni was of the opinion that the injuries were consistent with penetration by a blunt object, that they were inflicted at the same time and within the 24 hours preceding her examination of the complainant. Her opinion regarding the time of the infliction of the injuries was based on the redness she observed, which as time goes by changes to a bluish colour, and the fact that the excoriations still showed some elevated tissue, meaning tissue still detached from the posterior fourchette. When healed, this tissue flattens into its original condition. If the injury was more than a day old, the flaky tissue would have flattened. When challenged about the basis for forming this opinion, Ms Ngongweni said that her training enabled

8 8 her to describe and understand injuries. The cleft was fresh because of the redness on its edges and the surrounding swelling. An old cleft would be white on the edges and there would be no swelling. [20] Ms Ngongweni discounted the possibility that the complainant s injuries were self-inflicted, because of the age of the complainant and the pain the injuries would have caused. Further, self-inflicted repeated entry into and withdrawal from the hymenal tissue, is rare for a [.] year old. [21] The anal examination revealed no abnormalities. [22] The appellant closed his case without testifying or calling witnesses. [23] In her judgment the learned judge paid heed to the fact that A. was a young witness and that his evidence was to be approached with caution. She regarded him as an impressive witness and found, correctly in my view, that his evidence was corroborated by Ms J. in material respects. She was further of the view that the evidence of Ms Ngongweni reflected her extensive qualifications and work experience, and that she extensively, plausibly and chronologically explained all her conclusions. [24] I should at this stage, and before discussing further the reasoning of the court a quo in convicting the appellant, deal with the ground of appeal to the effect that Ms Ngongweni was not an expert witness and not qualified to perform a gynaecological examination of a rape victim. It followed, so it was submitted, that the accuracy of

9 9 her observations and the value of her opinions concerning the cause of the complainant s injuries, were questionable. At the trial her qualifications and her experience in examining rape victims and preparing reports were not challenged. [25] In order for the State to prove that the complainant had been penetrated as alleged in the indictment, the evidence of an expert in the field of gynaecological examination and the causes of detected gynaecological injuries was clearly required. [26] In Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) at 569B-C, Addleson J said: In essence the function of an expert is to assist the Court to reach a conclusion on matters on which the Court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the Court that, because of his special skill, training or experience, the reasons for the opinion which he expresses are acceptable. And in Mahomed v Shaik 1978 (4) SA 523 (N) at 528A-B Kriek J said (authorities omitted): It is trite that it is the function of the court to decide whether an expert has the necessary qualifications to enable him to express reliable opinions. [27] Amongst Ms Ngongweni s extensive qualifications is an advanced diploma in forensic nursing and her registered qualification in the J88 form was stated as forensic nurse. Mr. van der Spuy, who appeared for the appellant, asked rhetorically what is a forensic nurse? Ms Ngongweni did not give a summary of the content of the diploma course but she was not asked to. In my view, the title of the diploma gives the answer to the nature of the qualification. According to the Concise Oxford English Dictionary 11 th edition, the definition of forensic medicine is the

10 10 application of medical knowledge to the investigation of crime, particularly in establishing the causes of injury or death. A person with an advanced diploma in forensic nursing would on the face of it therefore not only have the requisite medical knowledge but know how to apply such knowledge, especially against the background of prior nursing qualifications and experience. In the present case, the knowledge would be applied in determining the cause of the complainant s injuries and whether or not they were consistent with sexual assault. [28] Bearing in mind the dicta in the cases mentioned above, I am not only satisfied that Ms Ngongweni is suitably qualified, but I am also satisfied that she has experience in examining rape complainants, preparing reports, and providing reliable opinions based on her clinical findings. The content of her evidence revealed a thorough medical knowledge in the specific field of examination and her opinions were supported by logical and cogent reasoning. In my view the court a quo was correct in accepting her evidence as that of an expert and there is no merit in this ground of appeal. [29] In convicting the appellant on the basis of circumstantial evidence, the learned judge applied the following dictum in R v Blom 1939 AD 188 at : In reasoning by inference there are two cardinal rules of logic which cannot be ignored: (1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. (2) 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 exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.

11 11 [30] The State witnesses were found to be credible and reliable and there are no grounds for this court to differ from the court a quo s assessment. The version of the appellant as put to the witnesses was correctly rejected. The proved facts therefore were as follows: according to Ms N. there was nothing wrong with the complainant s genitalia when she washed her in the afternoon and the complainant had not complained of pain or discomfort; the complainant and A. walked the 100 metres to Ms J. s house without incident; the complainant did not leave the house until she fell asleep; the appellant was alone in the dining room with the complainant while she was sleeping under a blanket; A. heard her cries and found her and the appellant alone in the dining room; the complainant was partially undressed in the manner described; when asked what had happened she pointed to the appellant; she suffered injuries consistent with penetration with a blunt object. [31] It can be logically concluded from these facts that the complainant sustained the injuries between the time she was left asleep and alone with the appellant and the time A. heard her crying. It is therefore reasonable to infer that the appellant inflicted the injuries. [32] It was submitted on behalf of the appellant that it was a reasonable possibility that the complainant herself could have inflicted her injuries. In my view the evidence of Ms Ngongweni concerning this possibility, together with the complainant s state of undress when she was found, rules out such an inference. It was further submitted that there was a reasonable possibility that some other person could have inflicted the injuries. A. s evidence was that on hearing the complainant crying while he was watching television, he got up to go to her. In view of his

12 12 evidence that he found the appellant alone in the dining room with the complainant, there was no room for the inference that another person inflicted the injuries on the complainant. [33] It was further submitted on behalf of the appellant that the complainant would have cried out in pain as soon as she was penetrated and that such a scenario was at odds with Ms Ngongweni s evidence of repeated entry and withdrawal. In my view such a submission is speculative. The complainant was left asleep in the dining room and might not have immediately cried when she was first penetrated. [34] Lastly it was submitted that there was no evidence to suggest anything strange about the appellant s demeanour when he was discovered with the complainant. He was simply rolling a cigarette. In my view this conduct on the part of the appellant did not diminish the effect of the evidence of the State witnesses and it could not be inferred from this conduct alone that he did not inflict the injuries on the complainant. [35] In my view the learned judge correctly stated that the only conclusion that could be drawn was that the appellant was the person who caused the victim s discontent. The inference that it was the appellant who penetrated the complainant as alleged was consistent with the proved facts and the proved facts excluded any other reasonable inferences. [36] The appeal is dismissed.

13 13 J M ROBERSON JUDGE OF THE HIGH COURT CHETTY J:- I agree D CHETTY JUDGE OF THE HIGH COURT PLASKET J:- I agree C M PLASKET JUDGE OF THE HIGH COURT Appearances: For the Appellant: Adv J van der Spuy, instructed by Port Elizabeth Justice Centre For the Respondent: Grahamstown Adv D Robinson, Director of Public Prosecutions,

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