IN THE KWAZULU NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA APPEAL NO. AR 140/2006 In the matter between: MQONDENI MBONGENI NGEMA

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1 1 IN THE KWAZULU NATAL HIGH COURT, PIETERMARITZBURG REPUBLIC OF SOUTH AFRICA APPEAL NO. AR 140/2006 In the matter between: MQONDENI MBONGENI NGEMA Appellant and THE STATE Respondent JUDGMENT GORVEN J [1]The appellant in this matter was charged with one count of rape, alleged to have been committed on diverse occasions during It was alleged that he raped his biological daughter, N C N, aged 13 at the time, in their home at Msinga reserve. [2]The appellant pleaded not guilty to the charge and elected to remain silent rather than make a statement in terms of section 115 of the Criminal Procedure Act, No. 51 of [3]The complainant, 15 years old and in grade 7 when she gave evidence, was a single witness. This, of course, requires caution in assessing her evidence. The

2 2 dictum of De Villiers JP in R v Mokoena 1 is to the effect that, in such instances, the evidence of a single witness must be clear and satisfactory in every material respect. This has been somewhat modified in S v Sauls and Others 2 where Diemont JA said the following: i. There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in 1932 may be a guide to a right decision but it does not mean "that the appeal must succeed if any criticism, however slender, of the witnesses evidence were well founded" ii. It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense. [4] In recent times it has been held that the cautionary rule relating to witnesses in matters with a sexual connotation must be dispensed with. 3 In S v M the court said the following: Prior to the decision in S v Jackson 1998 (1) SACR 470 (SCA), it had long been accepted that criminal cases of a sexual nature fell into a special category. It was said that there was an 'inherent danger' in relying upon the unconfirmed OPD 79 at (3) SA 172 (A) at 180E G 3 S v M 1999 (2) SACR 548 (SCA)

3 3 testimony of a complainant in a sexual case. This resulted in the courts adopting a cautionary rule of practice. The rule required (a) (b) the recognition of the 'inherent danger'; and the existence of some safeguard that reduced the risk of a wrong conviction, such as corroboration of the complainant in a respect implicating the accused, or the accused's failure to give evidence or his obvious untruthfulness. (See S v Snyman 1968 (2) SA 582 (A) at 585C H.) In S v Jackson it was pointed out at 476e f that the application of the cautionary rule to sexual assault cases was based on irrational and outdated perceptions. Although the evidence in a particular case might call for a cautionary approach, this, it was emphasised in the judgment, was not a general rule: the State was simply obliged to prove the accused's guilt beyond reasonable doubt. The factors which motivated this Court to dispense with the cautionary rule in sexual assault cases apply, in my view, with equal force to all cases in which an act of a sexual nature is an element. The reasons given by Olivier JA at 474f 477d in S v Jackson therefore require no elaboration or qualification in relation to the crime of incest and I proceed to consider the evidence without the restraints imposed by the cautionary rule. [5] The magistrate took into account the tender years of the complainant, both at the time of the incidents and at the time she testified. The magistrate dealt carefully and thoroughly with the inconsistencies in the evidence of the complainant. The magistrate commented favourably on her demeanour, a finding in which an appeal court is slow to interfere. A perusal of the evidence of the complainant confirms the finding of the magistrate that she was a good witness who satisfied the cautionary rule relating to young and single witnesses. She did not overstate her evidence, saying that on a

4 4 number of the occasions when she claimed that she was sexually interfered with by her father, she had not observed him at the time it was taking place. I agree with the magistrate that her evidence could only support a finding that there were two occasions on which she could identify the appellant as having had sexual intercourse with her. In her evidence she stated more than once that she had not told anyone about these incidents because the appellant had told her that he would assault her. However, on each occasion when she said this she was asked if the appellant had in fact told her that he would do so and she immediately corrected herself and said that she believed that he would assault her because the appellant had earlier said that if she had a boyfriend and she became pregnant, he would hit her. [6]Her evidence was that, on the two occasions in question, the appellant came to her whilst she was asleep and had sexual intercourse with her. She had subsequently become pregnant and had given birth to a baby girl. She had not had sexual intercourse with anyone else. She had not consented to his actions but had also not resisted or protested, either at the time or later. Her next conversations with the appellant were normal communications within the family and the matter was never spoken of until her grandmother discovered that she was pregnant; a fact of which the complainant was unaware. The testimony of her aunt confirmed all those aspects of that of the complainant relating to what took place thereafter. [7]The state called an expert witness, one superintendent Thompson, to testify on her analysis of blood samples provided to her. She was a Chief Forensic Analyst in the

5 5 South African Police Service. She was provided with three blood samples; one from a baby, one from the mother and one from another person. They were such that, after she had conducted a DNA analysis of the samples, she concluded that there was a 99% probability that the other person was the biological father of the baby. Whilst this evidence was not strongly contested, there was no evidence that the blood samples in question were those of the appellant, the complainant and the baby in this matter. No admissions were made by the appellant to this effect. That being the case, no reliance can be placed or should have been placed by the magistrate, on this evidence in relation to the charge. [8]It should be mentioned that a J88 form was handed in as exhibit B. This did not form part of the appeal record. A copy was obtained and the parties agreed that it was a true copy of the exhibit and that it should be included in the record as such. This did not deal with the blood samples taken for DNA analysis. It dealt only with the physical examination of the complainant. It confirmed that sexual intercourse had taken place and that the complainant was some 24 weeks into her pregnancy. No evidence emerged on clinical examination which supported the claim of rape as opposed to prior sexual intercourse. [9]The evidence of the appellant was inconsistent. He denied having had sexual intercourse with the complainant. Confronted with the DNA matching, he could not explain it. He could also offer no explanation as to why the complainant would falsely testify that he had had sexual intercourse with her. In the end he conceded that, if the

6 6 witness Thompson said that he was the father of the complainant s child, he must be the father. [10]In the light of the findings of the magistrate on the reliability of the complainant and her aunt, and on a careful perusal of the record, I am of the view that that evidence is sufficient to prove that the appellant had sexual intercourse with the complainant on two occasions. I am also satisfied, on the test set out in Sauls s case, that the truth was told by the complainant as to the two occasions of sexual intercourse with the appellant. [11]The magistrate convicted the appellant of rape. Since the offence fell within the ambit of Section 51 read with Schedule 2 of the Criminal Law Amendment Act, No. 105 of 1997, the matter was remitted to the High Court for sentence before Combrink J. At the stage when the learned judge enquired into whether the conviction was in accordance with justice, he raised the legal issue as to whether the State had proved that the appellant had the requisite mens rea to rape the complainant since she had not protested or in any way indicated to the appellant that she did not consent to his actions. The matter was remitted to a Full Bench but that forum held that it was premature to look into this aspect and sent it back to Combrink J for sentencing. After this Combrink J held that he was satisfied on the test set out in the legislation in question and sentenced the appellant to life imprisonment since he could find not substantial and compelling circumstances warranting a departure from the said prescribed minimum sentence.

7 7 [12]In the light of his misgivings on the conviction, Combrink J readily granted leave to appeal, first against conviction and thereafter against sentence. Thus the appeal before us. [13]The test for the requisite mens rea in a rape case was reiterated in S v Zuma 4 where the court formulated the approach as follows: The element of intention is vital because rape can only be committed intentionally. A principle of our criminal justice system is expressed in the maxim actus non facit reum nisi mens sit rea the act is not wrongful unless the mind is guilty. In casu it means that the intentional sexual intercourse had to take place with the accused's knowing that there was no consent by the complainant. See R v Mosago and Another 1935 AD 32 at 34; R v K 1958 (3) SA 420 (A) at 421F: 'The offence (of rape) consists in having connection with a woman, other than the man's wife, without her consent, from which it follows that if the Crown proves that there was no consent, and also, of course, that the accused knew this, it has established his guilt.' Whilst this defence was not raised at the trial, it is certainly open to be raised on appeal, as a legal point. It is for the State to prove the requisite mens rea. On the facts it cannot be said that the state proved that the appellant knew that the complainant did not consent to the sexual intercourse. The fact that the appellant approached in the dead of night does not lead to the necessary inference that he intended to rape the complainant. This is particularly so after the first occasion on which no subsequent protest was raised. The complainant did not cry, she did not raise the matter with anyone or in any way give any indication that she had not consented to this conduct (2) SACR 191 (W) at 205

8 8 A further factor is the enquiry by the appellant when the complainant stretched after the second occasion as to what she was doing. This does not appear to me to be consistent with a guilty mind on the part of the appellant. The test for mens rea must be distinguished from the test concerning whether the complainant in fact consented. She did not. I cannot find, however, on the evidence before the court a quo, that it was proved by necessary inference that the appellant knew that the complainant did not consent. [14]That being the case, the conviction must be set aside. That does not, however, put an end to the matter. A competent verdict on the charge of rape is the common law offence of incest. This common law crime was abolished by S12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007 but was intact at the time the offence was committed in This provides, in its relevant parts, as follows: (1) Persons who may not lawfully marry each other on account of consanguinity, affinity or an adoptive relationship and who unlawfully and intentionally engage in an act of sexual penetration with each other, are, despite their mutual consent to engage in such act, guilty of the offence of incest. (2) For the purposes of subsection (1) (a) the prohibited degrees of consanguinity (blood relationship) are the following: (i) Ascendants and descendents in the direct line This, in essence, codifies, with changes for gender and the like, the common law offence. Since the complainant is a descendant in a direct line from the appellant, the

9 9 evidence of the State proved the commission of this offence. The conviction of the crime of incest must therefore follow accordingly. [15]As regards sentence, that offence does not carry with it the mandatory minimum sentence imposed. As a result, the sentence must be set aside, not on the basis of any misdirection or excessiveness, but on the basis that a sentence for rape cannot stand in relation to a different offence. The offence is a serious one. There are very few cases on sentence dealing with the common law crime of incest which can serve as a guide to sentencing in this matter. [16]In S v M 5, Marais J dealt with an appeal by the state against an acquittal on a charge of incest where it was held that sexual intercourse by a father with his adopted daughter could not constitute incest. The appeal court upheld the appeal and convicted the respondent. It then dealt with sentence itself rather than remit the matter to the magistrate s court for sentence. The respondent was sentenced to 3 months imprisonment suspended for one year on certain conditions, largely on the basis that there was genuine affection between the parties and the adopted daughter and the respondent had both consented to the intercourse. [17]In S v D 6 the appellant had committed incest with his 14 year old daughter. The court held that, in the particular circumstances, the magistrate had not been (2) SA 617 (T) (3) SA 202 (O)

10 10 empowered to sentence the appellant to strokes with a cane and substituted a sentence of 6 months imprisonment. [18]The most comparable matter I could find on sentence was that of S v S 7. In that matter, the appellant was convicted on two counts of the common law crime of incest which has since been abolished by the statutory crime. This related to his 17 year old daughter whose claim that she had been raped was rejected by the court. He showed no remorse. The court held that it was ordinarily inadequate and inappropriate to impose a wholly suspended sentence or one of correctional supervision in terms of s276(1)(h) of the Criminal Procedure Act in matters of incest. He was sentenced to a period of three years imprisonment in terms of s276(1)(i) and a further period of 2 years imprisonment, suspended on the usual conditions. [19]In the present matter the appellant has been in prison, initially awaiting sentence and thereafter serving his sentence, since 3 February This means that he has already been incarcerated for a period of almost 6 years. He was sentenced on 12 September The sentence to be imposed should take into account the usual triad of factors; viz. the personal circumstances of the appellant, the nature of the offence and the interests of society. At the time of his arrest he was doing casual work and providing for his family. He was a first offender, aged 41. It should be noted that the appellant has other, younger, children. Subsequent to S s case, the Constitution of the Republic of South Africa Act, 1996, has come into effect. This specifically enshrines the rights of children. The crime in question fundamentally undermines these rights (1) SACR 267 (A)

11 11 since it is the person charged with protecting the child who commits the offence. It is likely to have long term deleterious consequences on the ability of the complainant to trust others, along with the likelihood of psychological trauma. Unfortunately there is no evidence on this aspect. The only thing which emerged is that the complainant, when testifying, indicated that she still loved the appellant. The Constitution marks a departure from the somewhat lenient approach taken in the past. A sentence in excess of that in S s case is therefore appropriate on the basis that the Constitution demonstrates what society sees as being in its interests, namely the protection of vulnerable children and the promotion of their rights. Society will no longer tolerate a lenient sentence. The appellant s wife pleaded with the court not to send him to prison at all. One does not know what motivated this plea but I take it into account. It seems to me that justice demands the imposition of a sentence of direct imprisonment. It is also appropriate, in the light of the potential danger to the other children of the appellant, to impose an additional term of imprisonment which is suspended so as to act as a deterrent and to protect against the risk of recidivism. In all the circumstances, I am of the view that a sentence of 8 years imprisonment, 2 of which are suspended for a period of 5 years on certain conditions, is appropriate. [20]I would accordingly uphold the appeal and set aside the conviction on a charge of rape and substitute it with a conviction of the crime of incest.. [21]I would also uphold the appeal against sentence and set aside the sentence of life imprisonment and substitute it with a sentence of 8 years imprisonment, 2 years of

12 12 which is suspended for a period of 5 years on condition that the appellant is not convicted of rape or of the crime of incest as envisaged in S12 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007 committed during the period of suspension. By virtue of S 282 of the Criminal Procedure Act, No 51 of 1977, this sentence shall be deemed to have been imposed on 12 September GORVEN J I concur: STEYN J I concur. CHILI AJ DATE OF HEARING: 26 January 2010 DATE OF JUDGMENT: 2 February 2010 FOR THE APPELLANT: IB Mthembu, instructed by the Durban Justice Centre

13 FOR THE RESPONDENT:W Greeff 13