Heshu v S (CA&R 264/09) [2010] ZAECGHC 13 (10 March 2010)

FORM A

FILING SHEET FOR EASTERN CAPE,

GRAHAMSTOWN

NOT REPORTABLE

PARTIES:

SANGUMZI HESHU V THE STATE

Case Number: CA & R 264/09

High Court: GRAHAMSTOWN

DATE HEARD: 24 FEBRUARY 2010

DATE DELIVERED: 10 MARCH 2010

JUDGE(S):

TSHIKI & EKSTEEN JJ

LEGAL REPRESENTATIVES –

Appearances:

for the Plaintiff(s): ADV J Mc CONNACHIE

for the Defendant(s): ADV

CERTFONTEIN

Instructing attorneys:

Plaintiff(s): LEGAL

AID BOARD

Defendant(s):

DIRECTOR

OF PUBLIC PROSECUTIONS

CASE INFORMATION -

Nature of proceedings:

Key Words:

Summary:

IN THE HIGH COURT OF SOUTH AFRICA

NOT REPORTABLE

EASTERN CAPE, GRAHAMSTOWN

C.A.&R.: 264/09

Date delivered: 10 March 2010

In the matter between:

SANGUMZI HESHU Appellant

and

THE STATE Respondent

JUDGMENT

EKSTEEN J:

[1] This is an appeal against a conviction of rape and the sentence imposed upon the appellant in the Regional Court of the Eastern Cape. The complainant alleges that she was raped by the appellant on an unspecified date during 1998, when she was a mere nine years of age. The alleged incident was only reported in 2001, three years after the event. The appellant was forty years old at the time of the alleged offence and the trial only commenced in July 2006, some eight years after the event.

[2] Matters of this nature are always difficult to adjudicate. Firstly, witnesses are testifying about events which occurred many years ago. Secondly, the complainant, who is a single witness, was a very young child at the time of the alleged offence, and even at the time of the trial was a child. I am alive to the fact that there is no statutory requirement that a child’s evidence must be corroborated, however, it has long been accepted that the evidence of young children should be treated with caution and that the evidence in a particular case involving sexual misconduct may call for an cautionary approach. (See S v V 2000 (1) SACR 453 (SCA); Woji v Santam Insurance Company Limited 1981 (1) SA 1020 (A).) In the present instance the complainant was a single witness and a child in an alleged sexual assault. In these circumstances I am called upon to be vigilant in the assessment of the evaluation of evidence in order to eliminate the risk of conviction on the basis of evidence of doubtful quantum. The complainants in matters of rape are necessarily women and children, unfortunately, the most vulnerable members of our society. The vulnerability of this section of our society should, however, not be allowed to be a substitute for proof beyond reasonable doubt or to cloud the threshold required of proof beyond reasonable doubt. (See S v K 2008 (1) SACR 84 (C) at 86e-g.)

[3] I turn to consider the evidence of the alleged rape. The complainant lived with her Aunt Nancy Heshu (Aunt Nancy) in New Brighton. She had previously grown up in Peddie where she resided with her grandmother until her grandmother died. She had been living with her Aunt Nancy from approximately 1997 and she testified that her Aunt Nancy was very strict upon her and had at times beaten her when she had been disobedient. The appellant is also a relative of Aunt Nancy and also lived in the same home. The complainant shared a room, and indeed a bed, with her cousin Lungiswa. She testified that one evening when she and Lungiswa were asleep the appellant knocked on the window of their bedroom and shouted at them calling out their names. Thereafter he knocked at the door and the complainant opened the door. The appellant, so the evidence goes, entered the room climbed onto the bed, pulled up the complainant’s nightie and pulled down her panties. He then got on top of the complainant and raped her.

[4] The complainant made no report until sometime during 2001, some three years after the alleged incident. She contends that the reason why she did not report the incident to anybody for a period of some years is that she was afraid that people may not believe her.

[5] The first time that a report was made was to the witness Ketani. Ketani appears to have been a house maid in the home of Aunt Nancy and had been working in the home of Nancy for approximately three weeks, although she had been known to the complainant for approximately a year before the report was made. When ultimately the complainant informed Ketani of the events she reported no more than that the appellant had had sexual intercourse with her. Ketani testified that there was nothing wrong with her demeanor when she made the report and there is no mention of any noticeable trauma or unhappiness at the time when the report was made. The complainant did however request Ketani not to tell others and suggested that the appellant had threatened to kill her if she should tell anyone what had happened. This latter suggestion, does not accord with her explanation for the delay in making the report.

[6] Some time later a letter was discovered in the bedroom of Aunt Nancy’s son. The letter was not tendered in evidence and it is alleged to have been lost. The exact content of the letter is accordingly not known. The evidence reveals, however, that the jist of the letter, which was addressed to the complainant’s cousin, Lungiswa, was to inform her that she was unhappy living in the home of Aunt Nancy and that she intended to relocate back to Peddie. According to some witnesses she expressed the view that if she were not permitted to do so she would commit suicide. There was no mention of the appellant in the letter nor was there any suggestion of any rape.

[7] On the discovery of the letter the family gathered and the complainant was called to account to Aunt Nancy for the letter. She became tearful and, for the first time, cried rape. She alleged that the reason for her unhappiness is that she had been raped by the appellant some three years previously. This tearfulness persisted and during the course of her evidence at the trial she again broke down in tears repeatedly.

[8] Whether the evidence in respect of this first report ought to have been admitted at all is doubtful. In S v Dyira 2010 (1) SACR 78 (ECG) at 82d-e Jones J commented as follows:

‘The delay in making a complaint has an effect on its admissibility which is even more difficult for the State to overcome. The lengthy period of 4 months should not be regarded as conclusive against admitting the statement, but it is a highly relevant and important consideration. The rule is that a complaint becomes admissible if it is made to a person to whom the complainant would be expected to make a complaint “without delay and at the earliest opportunity which under all the circumstances could reasonably have been expected” (R v Gannon 1906 TS 114 per Innes CJ).’

[9] Jones J continued at page 83e-g to comment as follows:

“It is also fair to say, as in S v De Villiers en ‘n ander 1999 (1) SACR 297 (O) at 306b, that, the longer the delay, the greater the prospect of fabrication and the more likely the possibility of untrustworthiness or unreliability. The length of the delay goes not only to the issue of admissibility, but also to the reliability and acceptability of the child’s evidence. Assuming that there was a threat to kill her, as she said in evidence, it does not necessarily provide a satisfactory explanation for a delay of seventeen weeks and an about face that occurred thereafter.”

[10] For purposes of this judgment I shall accept, without deciding the issue, that such evidence was admissible and I shall consider the weight which it should be afforded below. I have already stated that the evidence of the complainant as to the reason for her delay in reporting the incident is not consistent with her account to the witness Ketani. She informed Ketani that the appellant had threatened to kill her if she were to report the event. Whilst in evidence she explains the delay by advancing her fear of being disbelieved. In my view, the manner in which the report emerged is also not convincing. I have set out above the original report made to the witness Ketani. No mention was made of rape therein and there was no sign of any emotion when the report is made. When, however, she is confronted by Aunt Nancy with a letter which she had written to her cousin indicating her unhappiness to remain in the home of Aunt Nancy, a lady who was strict on the complainant and had at times beaten her, she cried. At this stage she became emotional and now related an account of the rape. I consider that these features call for a cautionary approach to the evidence of the complainant.

[11] There are other features of her account which give rise to some concern. I have alluded earlier to the complainant’s evidence that the appellant shouted her name and that of her cousin Lungiswa at the window of their room prior to knocking on the door. He then entered and proceeded to rape the complainant, or so her evidence goes, on the very bed which is shared by Lungiswa. At no stage did Lungiswa wake up and no traces of blood appeared to have been found on clothes or bedding. Of course these improbabilities do not mean that the event did not occur but, in my view, they do signify the need for very careful assessment of the trustworthiness and reliability of the complainant’s evidence

[12] The appellant lived in the same home as the complainant and Aunt Nancy. The complainant continued to live in the home for approximately another eighteen months to two years. During about 2000 the appellant left Nancy’s home and took up residence in his parental home. Another year passed after he had left before any report was made. The complainant contends that her relationship with the appellant was strained after the event. Originally she testified that she did not speak to the appellant at all after the rape had occurred. Under cross-examination, however, she concedes initially that she and the appellant spoke to each other normally as before, however, she later limited this conversation between herself and the appellant to instances where she was specifically sent to him to ask him things.

[13] The fact, however, is that the complainant and the appellant remained members of the same household for some eighteen months after the event. Nobody noticed any change in her personality. Similarly nobody noticed any signs of emotion on her part. The witness Zwayi testified that she had known the complainant from the time that the complainant came to Port Elizabeth from Peddie. She testifies that the complainant was a sweet child and that there was nothing wrong with her prior to or subsequent to the alleged event. Nobody noticed any change in the relationship between the appellant and the complainant.

[14] The medical evidence is equally of little assistance given the delay in the report. Dr Bathi did however on his examination in September 2001 find that the hymen was torn. It is indicative of penetration at some stage during the complainant’s life time, but no more than that. His findings are not inconsistent with the allegation of rape but can hardly be regarded as confirmatory thereof. Not surprisingly, he found no injuries or bruising.

[15] In my view the lengthy delay in the report constitutes a serious flaw in the State’s case. The only explanations given are the two inconsistent bases for fear which I have alluded to above. The account of the event, at face value, appears improbable. The subsequent interaction between members of the common household do not support the complainant’s account of this traumatic event.

[16] After the appellant closed his case the magistrate called a psychologist, one Holleley. Holleley had not interviewed the complainant and had merely read the transcript of the evidence. She testified that she is unable to cast any light on the question whether or not the event complained of actually occurred, and she expressed no view on the reliability of the complainant’s evidence, however, she testified that it is not uncommon for children initially to be afraid to tell the truth nor is it uncommon for them to make a gradual disclosure. She expressed the view that, in the event of the incident actually having occurred, then the delay in making the report is not inappropriate for a child.

[17] Notwithstanding Holleley’s evidence I consider that the delay serves to detract from the complainant’s evidence and calls for a careful evaluation of the trustworthiness and reliability of her account. It was necessary for the Court to deal with it before it could be satisfied that there was proof of guilt beyond reasonable doubt. In the present matter the judgment did not evaluate the effect of the delay, whatever its cause, on the reliability of the evidence. This was essential to a proper evaluation of the evidence. I consider that this failure constitutes a misdirection on the part of the magistrate. (See S v Dyira (supra) at 84b.)

[18] The appellant, not surprisingly, faced with an allegation of a rape on an unspecified date some three years previously does no more than to deny any wrongdoing. He states that he always had a very good relationship with the complainant and in the period leading up to his departure in 2000 he interacted normally with the complainant and other members of the household. This evidence is not contradicted by any of the other witnesses. On a consideration of all the evidence I am of the view that the State has failed to establish the guilt of the appellant beyond reasonable doubt.

[19] In the circumstances I would uphold the appeal and set aside the conviction and sentence.

_______

J W EKSTEEN

JUDGE OF THE HIGH COURT

TSHIKI J:

I agree, the appeal succeeds and the conviction and sentence are set aside.

P W TSHIKI