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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:  CC 22/2018

                                                                                                Date Delivered:  7/12/2018

 

In the matter between:

 

THE STATE

 

and

 

SYDNEY HORNER

 

JUDGMENT

 

MAKAULA J:

[1]        The accused faces a charge of rape.  It is alleged that on or about the 23 July  2017 at or near Hudson Farm, Bloemhof, in the district of Kirkwood, the accused unlawfully and intentionally committed acts of sexual penetration with S N a 12 year old girl by forcing her to perform fellatio upon him twice, putting his finger into her vagina and having sexual intercourse with her per vaginam and per anum without her consent.

[2]        T C N, the mother of the complainant, testified that on the day of the incident she sent the complainant, who was 12 years old at the time, to meet her sister and aunt in town at Kirkwood.  She was also to hand over some items of clothing to her aunt.  The complainant was due to come back home with her sister who was from holiday.  The complainant left home at about 17h00.  She waited in vain for her that evening.  The complainant and her sister were to take a taxi back from town to home together.  She only got a message the following day that the complainant had been raped.  She went to town and met with the complainant.  They both went to the charge office were they laid a charge.  On the same day they were taken from Kirkwood to Port Elizabeth to Dora Ngindza Hospital for medical checkup.

[3]        She testified that at the time the complainant was doing Grade 5.  She dropped dramatically in her school performance as a result of the incident.  She, however, passed Grade 5.  She has failed all her tests examination this year.  However, she has not yet received her final examination results. 

[4]        S N testified (the complainant) that she was sent by her mother to town.  She was to take a bag full of clothing to her aunt.  She was also going to come back home with her sister who had been on holiday at her aunt’s place.  On arrival in town she went to their rendezvous i.e. Corner Café.  She waited but in vain.  Two gentlemen in company of a lady arrived and inquired from her why she was standing at that place.  They warned her that is a dangerous place for a child to be at that time of the night.  The accused offered to remain with her so that he can look after her.  He asked the accused to accompany her to a certain garage to look for her aunt.  Indeed, they went there but could not find them.  They went back to the Corner Café.  She was surprised when the accused said they must take a different route to the one they had taken when they were going to the garage.  The accused held her by her hand and then proceeded on that route.  They got to an orchard.  Accused opened the gate.  She offered to close it but the accused refused.  They walked on a gravel road between the fruit trees.  The accused pulled her to a different path which was between the fruit trees.    The accused asked her what was inside the bag.  Accused took the small bag.  It is at that staged that she decided to run away because she suspected that the accused was in the process of robbing her.  The accused gave chase and tripped her.  She fell and the accused grabbed her by her leg.  She tried to kick the accused in the face but missed.  The accused pulled her close to him and started to strangle her, asking why she ran away.  She did not respond. 

[5]        The accused ordered her to play with his penis.  She asked if she would do that would he allow her to go home.  The accused agreed.  She obliged and played with his penis.  At that stage they were sitting on the ground.  The accused ordered her to take off her trousers as well as her panty.  She inquired from him why she was doing that because he had initially said he would allow her to go if she played with his penis.  The accused did not respond and ordered her to undress.  She told the accused that she would undress herself which she did.  The accused then lowered his pair of trousers and underpants and lied on the ground and ordered the complainant to sit on top of him.  The complainant obliged.  The accused placed his penis between her buttocks and he ordered her to stretch herself on top of him.  She had her legs on either side of the accused’s legs.  The accused penis went between her buttocks.  He ordered her to make up and down movements, to which she complied.  Thereafter the accused inserted his penis in her vagina.  The penis did not go all the way inside of her vagina and her anus.  She, however, felt it when he tried to penetrate her anus and vagina.  He stood up and caused her to lie on her stomach and penetrated her through her anus from behind.  All of a sudden the accused exclaimed that he is so unfortunate with women that all girls do not want him.  He told her to kiss her on the neck which she did.  The accused then kissed her in her mouth.  He ordered her to stand up and play with his penis.  He further ordered her to lick his penis.  She complied because she was afraid of the accused.  She would lick and spit and lick continuously until the accused was satisfied.  At some stage the accused ejaculated away from her.  After that he ordered her to sit on top of him and make up and down movements.  She obliged.  He ordered her to lie on her back.  The accused had the sexual intercourse with her.  She felt pain in the process and was crying.  Accused then used his hands to close her mouth.  At some stage when his penis was inside her mouth, the accused told her that if she bit him, he would kill her. 

[6]        She testified that initially the accused tried to insert his finger in her vagina.  However the finger could not penetrate her.  He made a comment that why was her vagina so big is she sleeping with boys.  She denied sleeping with boys telling him that she does not do such things because she is only a child.  After the accused ejaculated he told her that he has money and was from Johannesburg.  When the accused finished he dressed and she did likewise.  They looked for the bags and the accused took her to his place where she slept.  She decided to sleep at the foot of the bed and the accused also slept on the bed.  She saw people and the accused commented saying that he has a “cherry”.  That person retorted and told the accused that she is not “a cherry” but a child.  In the morning the accused accompanied her to the main road.  They came across a bakkie.  The accused informed her that she must, when asked, tell those people that she was his sister’s daughter.  At the road the accused showed her the way to town and turned away.

[7]        She went to her uncle’s place and told him that she had been raped.  The matter was reported to the police.  She was taken to hospital where she received medical treatment. 

[8]        The complainant was examined on 24 July 2017 at 18h40 by Dr David Mziwanadoda Qolohle.  He is a District Medical Specialist at Sarah Baartman District and at the time he was working at Dora Ngindza Hospital leading the Thuthuzela Rape Centre.  He recorded her date of birth as 28 April 2009.  She weighed 40 kilograms and 154 cm tall.  He could not get any historical information about the rape from the complainant because the complainant was tearful and very shy.  Her breast development and pubic hair are consistent with a child of her age because they are between tanner stages 3 to 4, so he testified.  His gynecological examination revealed that her urethral orifice was swollen and reddish, para-urethral folds were swollen and reddish as well.  The hymen configuration was disrupted, it was swollen, there were clefts at 3 o’clock and 5 o’clock, fresh tears also at 3 o’clock and 5 o’clock.  His conclusions are as follows:

            “Findings on genitalia are consisted with forceful penetration past the labia with disruption of        hymen”.

He further examined her anally.  The anal examination revealed that it was clean but the skin surrounding the orifice had fissures/cracks, there were abrasions on the orifice itself, it had tears, it was swollen on the thickening of the rim and there was a reflex dilatation and minimal twitchiness or winking present.  His conclusions are as follows:

            “A linea of 0.5 cm crack at 5 o’clock with some reflex dilatation is suggestive of forceful    penetration”.

 

[9]        In his opinion blunt force trauma was exerted to her both her virginally and anully.  The injuries was fresh suggestive of having occurred within a period of three days.  He further testified that at the time of penetration the complainant was certainly a virgin.  He further opined that a finger, because it is pointed and would not have been able to penetrate the complainant because it would go directly into the vagina and would not cause the injuries which were sustained by the complainant.  The injuries sustained by the complainant are commensurate with injuries penetrated with a blunt object like a penis which could not penetrate the vagina.  He testified that the complainant experienced tremendous pain at the time of penetration.  The State case was closed thereafter. 

[10]      The accused testified in his defense.  He testified that he was born in 1981, he dropped out of school in the lower classes.  He resided in East London before he came to Kirkwood because of a job opportunity.  He confirmed that he met the complainant at the Corner Cafe.  They were three at the time.  He decided, out of the goodness of his heart, to remain with her because the area she was at was very dangerous.  The complainant asked him to go with her to the garage to look for her aunt and her sister.  On their way back from the garage he told the complainant that he was going to his place to sleep.  He testified that they ended up in the orchard enroute to his place.  He told her that they should walk far away from the farm house.  They entered the orchard and walked between the fruit trees.  He held her by her hand as they were walking.  He testified that he was heavily intoxicated at the time.  He stated that as he was walking with the complainant he became sexually aroused.  He pulled the complainant aside and inserted his finger through her vagina.  He could not penetrate her with the finger.  Then he took out his penis and fondled it until he ejaculated.  He denied that he ever asked the complainant to play with his penis nor did he try to penetrate her with his penis.  He denied that he raped the complainant either vaginam or anally.  He denied that he ever told the complainant to sit on top of him and do up and down movements.  However, he could not recall whether he did kiss her or not.  All the time he thought the complainant was eighteen years old.  She did not appear to be a child of twelve to him throughout his encounter with the complainant.  He confirmed the evidence of the complainant that they went to sleep at his place and woke up the following morning.  He accompanied her halfway to town.  He confirmed the evidence of the complainant that they came across a bakkie but denied that he told her to say that she was his niece.  He testified that he cried after ejaculating because he has a tendency of not having steady love relationships with women.  He would have a woman one day and then the following day the woman would reject and never want to see him again.

[11]      Most of the facts in this matter are common cause.  The only difference is that the accused testified that all he did was to try and insert his finger in the complainant’s private parts.  He did not succeed.  He does not know how she sustained the injuries on her private parts and on her anus.  The complainant on the other hand gave a detailed account of how she met the accused until the following morning.  Her evidence is convincing.  She gave a good account of what took place to her.  Her credibility was impeccable for a child her age.  Her evidence is corroborated by the evidence of Dr Qolohle insofar as the injuries in her private parts are conserved.  Dr Qolohle ruled out the use of a finger as the cause of the injuries.  Complainant was consistent throughout her testimony.

[12]      The accused was a poor witness.  He initially testified that he knew what occurred from the time he met the complainant.  When cross-examined by Mrs Turner, for the State, about the details of what took place and the improbabilities of his evidence, he changed to say he was heavily intoxicated suggesting that he did not recall some of the things that took place.  However, he testified that he became sober immediately after he ejaculated.

[13]      In his plea explanation, the accused states:

                      “I admit that in the orchards I held the complainant and unzipped my pants.  I asked the                         complainant to touch my private parts and she complied, although I do not think that she                          wanted to”.

 

[14]      In his evidence, he denied that he told the complainant to fondle his private parts.  The complainant testified that during the rape incident, the accused suddenly sobbed and said he did not know what was wrong with him because women rejected him.  The accused admitted in his evidence to have said so as it appears above in his testimony.  The accused was a poor witness who did not give clear and straight forward answers.  He would blame his intoxication for not remembering some of the things that occurred.  But suddenly, after the rape had occurred and he had ejaculated, he became sober and remembered everything until he parted with the complainant the following morning.

[15]      The evidence of the accused stands to be rejected as false.  The State proved commission of offence beyond reasonable doubt.  The accused is found guilty of rape. 

               

 

M MAKAULA

Judge of the High Court

 

 

Counsel for the State:                   Adv N Turner

                                                            Director of Public Prosecution

                                                            Grahamstown

 

For the Accused:                           Mr D Geldenhuys

                                                            Legal Aid

                                                            Grahamstown

 

Dates Heard:                                 4; 5 December 2018

 

Conviction Delivered:                    7 December 2018

 

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