IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.:A392/10
In the matter between:

and

JUDGMENT DELIVERED: TUESDAY 26 APRIL 2011 
SALDANHA, J

[2.] Leave to Appeal was granted against both the conviction and sentence and the appellant was released on bail pending the outcome of the appeal.

[5.] The central issue raised on appeal by the appellant was whether the State had proved beyond reasonable doubt that he had raped the complainant on the two occasions.

The evidence.

[7.] The complainant's father, Mr. John Hayes, had informed Douglas about the complainant having been behind in her developmental milestones. Her medical files revealed that she had at the early age of four years undergone repeated assessments at the Wynberg Military Hospital with regard to concerns about her delay in language articulation and in other areas of difficulty. She received occupational and speech therapy. In 1995 she was assessed as having significant development delays across a range of areas. She was found to have been cognitively handicapped on a verbal scale and on a borderline range in respect of her performance skills and her global intelligence. She attended pre-primary school and went on into an adaptive class until the end of 2001. It appeared from her school reports that despite having had good relationships with her teachers she suffered significant emotional and behavioral difficulties, was regarded as disruptive and appeared isolated at school. Her academic progress was generally slow and difficult She received psychological counseling in the year 2000. In February and March of that year she also received individual play therapy following two attempts of suicide. She was found unsuitable for a placement at a special needs high school, Vista Nova School, because of her delay in global and intellectual development. She was referred to the Therapeutic Learning Centre at the Red Cross Children's Hospital for the purpose of a comprehensive diagnosis and therapeutic input. She attended the centre for the better part of the year 2000 and her parents also received counseling. She was provided with behaviour modification and social skills programmes.   She had also been placed at the Khanyisa Special School and thereafter attended the Batavia School, also a special needs school, where she reported continued unhappiness and isolation.

[11.] She thereafter accompanied the appellant to a shopping centre in Parow and he later dropped her off at the Kenilworth Centre. She claimed that she was scared of the appellant because of his muscular build and the way that he had looked at her and therefore did not tell anybody about the incident. She also claimed that she did not call out to his friends, who were on the premises during the incident, because she feared that they would simply have participated in the rape.

[13] When she returned to the hairdressing salon she was ecstatic, which she ascribed to the water that she drank at the appellant's place Her parents had earlier called the hairdressing salon to find out where she was, as they were concerned that she was late in returning home. Her mother had picked her up at the salon but she initially resisted going home with her. She refused to disclose to her mother where she had been and claimed that she did so to protect the appellant whom she at that stage desperately loved. Upon her arrival at home she maintained her silence and her father, a member of the police services, gave her a beating with a spoon in an endeavour to elicit where and with whom she had been. Her mother assisted her father by holding her down. She later disclosed to a friend of her mother Desire, who was present at their home at that time that she had been with the appellant. Desire in turn told her mother. She thereafter had a bath which she described as particularly painful because of the beating. She was taken to her grandmother's house where more pressure was put on her to disclose where she had been that day. Her uncle, also a policeman, also threatened to beat her up because of her relationship with the appellant.

[14.] She claimed that the atmosphere in their house was particularly unpleasant thereafter. The next day she was taken by her father to an emergency medical facility for a drug test. The tests proved negative.

[15.] The following day, 26 December 2011 she accompanied her father to Parow where she pointed out the appellant's residence. She saw him in the company of another woman and she claimed that immediately made her feel very sad. Her father thereafter took her to Karl Bremmer Hospital where she was examined by a doctor. The doctor told her that she was no longer a virgin and she became very upset about it She told the doctor that it was the appellant who had had sexual intercourse with her without her consent.
[16] She also claimed that she had been taught at the Batavia School about sex and that she knew exactly what it was all about. She had made two statements to the police. The first was prior to the medical examination wherein she did not disclose that the appellant had raped her. In the second statement she claimed that the appellant had raped her. During the cross-examination she angrily gestured at the appellant in court for his repeated denials of having had any intimate relationship or any love for her. She emotively described her anger at the appellant for having deceived her about his love for her and for having a relationship with another woman She crudely taunted the appellant from the witness stand that she was yet to vent her anger at his pregnant girlfriend

[19.J The complainant's mother claimed that both she and her husband were not happy with the pace of the investigation and that her husband had consequently intervened with the police.

[20] The complainant's father had 15 years of experience as a police officer and mainly dealt with crime intelligence. He confirmed the evidence with regard to the intellectual disability of the complainant He regarded her as particularly vulnerable and both he and his wife were therefore overly protective of her. He confirmed the evidence of both the complainant and his wife where it related to his involvement but claimed that it was after he had confronted the complainant in the car on the way back from the appellant's house that she said that the appellant had raped her. He testified that the complainant had claimed that the appellant had threatened her with a firearm and to harm the rest of the family if she revealed to the police what had happened He immediately contacted the police again and arrangements were made for the complainant to be medically examined at the Karl Bremmer Hospital. He claimed that no statement was taken from him despite his repeated requests to the investigating officers and subsequently to the prosecutor to do so. He also claimed that he had been dissatisfied and frustrated with the investigating officer and the delay and what appeared to be a lack of effort in tracing and arresting the appellant. He therefore complained to the superiors of the investigating officer and as a result thereof somebody else was assigned to the investigation of the case.
[21.] He was also upset that the appellant had been released on bail subsequent to his arrest notwithstanding the seriousness of the charges against him.

December 2004. He claimed that it was because of a "stupid mistake" of his relationship with the complainant that he had landed up in court and in the situation that he found himself in He blamed the complainant's father, who he claimed had conspired against him in the prosecution of the charges.

Evaluation

The magistrate described the rape on the 24' December 2004 as a "date rape scenario" where despite the objections by the complainant the appellant had merely overrode her objections and had sex with her anyway. She found that the complainant had not only objected to his sexual intentions, but, because of her disability and her not being able to fully comprehend the situation in which she was in, was. also unable to negotiate safe sex and that she could not have consented to sexual intercourse.

[26] The State is required to prove the guilt of the appellant beyond reasonable doubt

[27.] The evidence of the complainant as a single witness and a child has to be approached with the appropriate measure of caution. This should be especially so , given the moderate intellectual disability in which she functioned at the level of a child of nine years and eight months.

"(a) a court will articulate the warning in the judgment, and also the reasons for the need for caution in general, and with reference to the particular circumstances of the case;
(b) a court will examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in alt material respects;
(c) although corroboration is not a pre-requisite for a conviction, a court will sometimes, in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt;
(d) failing corroboration, a court will look for some feature in the evidence which gives the implication by a single child witness enough of a hallmark of trustworthiness to reduce substantially the risk of a wrong reliance upon her evidence. (S v Artman 1968 (3) SA 339(A) at 340h*

"Section 208 of the Act (Criminal Procedure Act) stipulates that an accused may be convicted on the evidence of a single and competent witness. This does not displace an important principle in our law that the evidence of a single witness must be approached with caution. Before the Court can place any reliance thereon, the evidence of a single witness must be clear and satisfactory in every material respect. In other words, the evidence must not only be credible, but must also be reliable. In this respect see S v Makoena 1956 (3) SA 81 (A); S v Webber 1971 (3) SA 754 (A) at 758G; S v Sauls and Others 1981 (3) SA 172 (A) at 179G-180G; S v Stevens [2005] 1 All SA 1 (SCA) at 5d-h; and S v Gentle 2005 (1) SACR 420 (SCA) at para 17. However, our courts have repeatedly warned that the exercise of caution should not be allowed to replace the exercise of common sense (S vArtman and Another 1968 (3) SA 339 (A) at 341 Cy

[32] The complainant was under the age of sixteen years old and was clearly not able to have consented to sexual intercourse with the appellant. I am of the view that in consideration of the totality of the evidence in respect of the first count the magistrate had incorrectly found that the state had proved the rape or any sexual intercourse between the appellant and the complainant beyond reasonable doubt.

Ad sentence
[34] The appellant had been sentenced to a term of imprisonment of 15 years on both counts based on a conviction of rape. In the circumstances, sentence has to be considered afresh based on his conviction of the contravention of section 14(1 )(a) of the Sexual Offences Act. Section 14 provides for a maximum sentence of six years imprisonment and the alternative of a fine of R12000.00.

[36.]  The court held at para 5:
"It is a well established principle of our law that the sentence imposed must fit the nature of the offence of which the accused was found guilty. Put differently, the severity of the sentence must not be grossly disproportionate to the offence itself.An exemplary sentence such as the one that we are concerned with here, is not a fair and just punishment because it is disproportionate to the true deserts of the offender."

[37.] The court however, found that this did not mean that deterrence was no longer an object in sentencing. In that matter it had found that it was unlikely that the appellant would commit the same offence again. The court in assessing tne circumstances of the offence and the personal circumstances of the appellant imposed a sentence of three years imprisonment.

"Although pubescent and females are by definition physically prepared for the act of sexual intercourse, a concern remains regarding the emotional, psychological and social effects on these giris. Further, these sexual crimes are regarded as serious because in the present times sexual molestation of children has become quite a serious social problem, giving rise as such to a legitimate uproar in the community (see the matter of S vM 1998 (1) SACR 463 (SCA)).

[40.] In that matter the appellant was sentence to a period of 12 months imprisonment.

[41.] It is apparent from the above cases that the consideration of an appropriate sentence for the contravention of the statute requires to be dealt with on its own set of circumstances.

[42] The appellant's personal circumstances were placed on record by his legal representative. He was at the time of sentencing forty years old, the father of two children and married to their mother. At the time of the offence he was not married but had been living with her. He had been employed in the tourism industry for a number of years and he had no previous convictions.

[43.] Douglas in her report recorded in her assessment of the complainant that she had expressed ambivalent feelings about her willingness to testify. She felt vulnerable with regard to her own safety and confused with regard to the nature of the relationship between herself and the complainant. She found the complainant to be preoccupied with the events and that she had required hospitalization for a period following the incident and was under the care of a psychiatrist. Both of the complainant's parents had also testified about the extent of the trauma that the complainant displayed after the incident. A Social Welfare Report which had been prepared for the purposes of sentencing by a Ms C Malan a social worker in the department of Social Services, was handed into evidence. It appeared from the information available to her that the complainant had become withdrawn after the incident and had on one occasion ran away from home She was also hospitalized during January and February 2005 at the Crescent Clinic for the treatment of depression and anxiety. Malan had also received a report from the Batavia School after the incident and it appeared that the complainant had become aggressive and regularly got into fights with other learners. She had also lost weight after the incident She claimed that in her consultations with the complainant she at times experienced a longing for the appellant. The complainant had also become emotional during the consultations and it appeared that she found it difficult to talk about the incident. The complainant had also lost one of her best friends who had been unhappy about her relationship with the appellant in the first place. Ms Malan was also of the view that the incident had a dramatic impact on the family of the complainant and in particular because of her vulnerability and her mental development. The complainant's parents claimed that since the incidents they have become over-protective of her and do not allow her to leave the house and when she does they remain in constant telephonic contact with her. Malan was of the view that the complainant had experienced serious trauma as a result of the incident. She was of the view that the appellant had misused his position of trust with the complainant, who was a young, emotional and immature child with limited intellectual functioning. It appeared that the complainant would require on going counseling, particularly given her conflicted feelings for the appellant.

[44] The appellant, despite his relationship with the complainant, maintained that he had absolutely no physical contact with her. He displayed a complete lack of remorse or appreciation for the nature of his abuse of his relationship with the complainant His conduct is also aggravated by the huge age gap between them and the fact that he was in an existing relationship with another woman.

[45] In the circumstances I propose to impose a sentence of six (6) years imprisonment on the appellant of which two years is suspended on condition that he is not convicted of any offence under the new Sexual Offences and Related Matters Act 32 of 2007.

In the result I propose to make the following order;

iii)	A sentence of six (6) years imprisonment is imposed of which two years is suspended on condition that the appellant is not found guilty of contravention of any provision of the new (Sexual Offences and Related Matters ) Amendment Act 32 of 2007.
iv)	
It is ordered that;

I agree

						ALLIE, J

I agree and it so ordered