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NOT REPORTABLE IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG

REPUBLIC OF SOUTH AFRICA

APPEAL NO. AR 452/2009

In the matter between:

LINDOKUHLE THULANI KHUMALO Appellant

and

THE STATE Respondent

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JUDGMENT

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GORVEN J

The appellant in this matter was charged with one count of rape of a ten year old girl, E N, which took place on 13 March 2007. He pleaded not guilty. He did not amplify his plea but it emerged in cross-examination that his defence was an alibi. Despite this, he was convicted of the offence charged. He was sentenced to life imprisonment. He appeals against both his conviction and sentence.

1. As with most rape cases, the complainant was a single witness to the offence. A doctor was called who explained the J88 form completed by another doctor who had since left the hospital where the complainant was examined. The J88 was handed in by consent and the appellant’s attorney accepted the contents. It recorded a fresh tear in the hymen and redness and tenderness of the vulva. This was explained by the doctor giving evidence as being a sign of penetration but he could not say that it was sexual penetration. His evidence went uncontested. Also uncontested is the fact that the complainant was raped on the day in question.

2. The trial took place some 18 months after the event. The complainant gave a remarkably clear account of the events of the day. She went to the river to do her washing around the time it was getting dark. To get to the river, she passed by the home of the appellant. This was separated from her home by one other house. As she walked past his homestead he called to her and asked why she was going to the river so late. She did not answer him but continued to the river. Soon thereafter, when she had washed a few of her clothes, the appellant, whom she referred to by his full name and surname, arrived at the river. He grabbed her, forced her to take off her panties, took off his trousers and underwear and got on top of her. He inserted his penis into her vagina and caused pain in doing so. She told him that it was painful but he ignored her. He started to move up and down on top of her and, when finished, dressed himself. He told her that if she told anybody what he had done he would kill her. She dressed herself but did not finish her washing and went home. She was bleeding from her private parts and used a cloth to wipe away the blood, after which she disposed of the cloth. When she reached her homestead, she was told to eat but was unable to do so and went to sleep. The following day she went to school but wet herself in the classroom. When her teacher asked her what the problem was, she refused to say. Her older sister was called and, after some time, she told her sister that “Lindi” had raped her. Once they arrived home, her sister told her grandmother and the grandmother contacted the police. Both her parents were deceased. She was taken to the police station and made a statement there. The following day she went with her grandmother and the police to the hospital where she was examined by a doctor. When asked why she had not told the people at home immediately after the rape, she said that the appellant had threatened to kill her so she was scared.

3. The complainant was cross-examined extensively. It was put to her that, on her return from the river she stood at the fence of the appellant’s homestead. The appellant and two of his sisters were standing in the yard of their home and asked her why she was standing at the fence. She admitted seeing two of the sisters of the appellant at that stage, whom she correctly named, but denied seeing the appellant and further denied that she was asked why she was standing by the fence or, for that matter, actually standing by the fence. It was also put to her that the appellant had arrived at his homestead at about 2.30 that afternoon and did not leave it thereafter. The complainant stated that the appellant had come to the river and raped her. She stated that she had arrived home with her washing after sunset when it was beginning to get dark.

4. The complainant’s sister testified and corroborated her evidence in every material respect. She said that, at school, the complainant was initially reluctant to tell her what had happened but when she did, mentioned the appellant’s shortened name, “Lindi”. She confirmed that they and the appellant’s family were neighbours and knew one another.

5. The appellant testified and called one of his sisters to testify on his behalf. He said that he knew the complainant. She had passed his homestead late that afternoon while he was outside with his sisters in the yard. He asked the complainant why she was standing there at that time of day with washing on her head. She did not answer but simply walked away. He left shortly thereafter for his mother’s homestead which was in a different direction to the river. He denied having followed the complainant to the river and having raped her. The following evening he heard knocking at the door of his mother and people were asking where he was and claimed that he had raped the complainant.

6. His evidence contradicted that put on his behalf by his attorney in at least two respects. In the first place, he did not stay at his homestead, where he had seen the complainant after 2.30 but left shortly after seeing her on her way to the river. Secondly, he saw her on the way to the river and not on her return from the river. His sister contradicted him, giving evidence that she saw the complainant when she was walking towards the river and the complainant did not stand by the fence. She further contradicted him saying that he was only at the homestead some ten minutes that day and not since 2.30 that afternoon. He and the witness contradicted what was put on his behalf about not having left his homestead when both of them testified that, shortly after seeing the complainant, he left the homestead for that of his mother. His sister, however, did not see in which direction he left or which gate he used to depart.

7. The magistrate then recalled the complainant to clarify at what stage she saw the appellant’s two sisters in the yard of their home. She said that she saw them on her return from the river and continued to deny that she was spoken to then. She did testify, however, that when she was going to the river the appellant had asked her why she was going to do the washing and asked her why she was going so late. She did not answer him and did not see his sisters on that occasion. She also confirmed that she did not see the appellant in the yard on her return from the river, having only seen his two sisters.

8. The magistrate correctly found that the complainant was a very good witness. Whilst his judgment was short and did not deal with the criteria required of a single witness, I am of the view that she amply satisfied them. Where her evidence could be corroborated, it was corroborated. It is consistent with all the known facts. In addition, her evidence has a compelling ring of truth. Her wiping away blood and disposing of the cloth and her fear to tell the people at home to the extent that she could not eat but went to bed are examples. Her wetting of herself at school the following day and her continued refusal to tell the teachers, persisted in until her sister convinced her to tell, is also consistent with a rape having taken place and her having been threatened is she were to tell. Her version accords with the probabilities. Her evidence as to identity was borne out by her knowledge of the appellant and her identification of him by name. This was not placed in dispute.

9. The evidence of the appellant, on the other hand, was riddled with inconsistencies, improbabilities and outright contradictions. The magistrate quite rightly rejected his evidence in its totality. His version could not be reasonably possibly true.

10. I can find no basis on which to interfere with the conviction of the appellant.

11. As regards sentence, the provisions of s 51 and 52 of the Criminal Law Amendment Act, No. 105 of 1997 (“the amendment act”) read with part 2 of schedule two were referred to in the charge sheet. The reference, although mentioning a minimum sentence of life imprisonment, should have been to part 1 of schedule two. In addition, it was conceded by Ms Watt, who appeared for the respondent, that the magistrate misdirected himself in finding that the complainant in the present matter was severely injured. This leaves this court at large to impose a suitable sentence.

12. The appellant was a first offender, had two child dependents and a stable family and was relatively young at 28 years of age. He had only two years of education at school. He was employed in various temporary building jobs at the time of his arrest and was supporting his child who was living with him but not his child who was living with its mother due to the distance. His mother had died recently and his child was then staying with its grandmother, who was paid a pension. He earned between R800 and R1 000 per month. No evidence was led as to the emotional effect of the offence on the complainant but it can be assumed that this will be significant. The offence is a serious one and the legislature has seen fit to include it in those for which a minimum sentence of life imprisonment is imposed. It involves a defenceless member of society whose parents are dead and who will suffer the effects of this incident for years to come. One can only hope that she receives social and psychological support as a result. The minimum sentence provisions give an indication of how to assess the interests of the community although it is also in the interests of the community to keep open the possibility of rehabilitation of the appellant.

13. In the light of all the factors, I would have been disposed to find that there were substantial and compelling circumstances which warranted a departure from the minimum sentence prescribed had it applied. Whilst the facts of this case are by no means on all fours with that of S v Sikhipha¹, it affords some support for this finding. This means that the starting point for assessing a suitable sentence is something less than life imprisonment. The appellant as a first offender and in all the circumstances should, in my view, be afforded the opportunity of learning from his sentence and rehabilitating himself. To remove him from society for a period of time which may seem interminable would not encourage rehabilitation or fit the circumstances of the case. Both counsel who appeared before us submitted that a sentence of imprisonment of 15 years would meet the situation. That is also my view.

In the result I would propose the following order:

1. The appeal against the conviction of the appellant is dismissed.

2. The appeal against the sentence of the appellant is upheld and the sentence is substituted with a sentence of 15 years’ imprisonment.

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GORVEN J

I agree and it is so ordered.

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VAN DER REYDEN J

For the appellant: Z Dyasi, instructed by the Pietermaritzburg Justice Centre

For the respondent: AA Watt, of the Director of Public Prosecutions

Date of hearing: 1 December 2009

Date of judgment: 3 December 2009

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