THE SUPREME COURT OF APPEAL
OF  SOUTH AFRICA

JUDGMENT

Case No 510/10

In the matter between:

THOKOZANE PHILANE SINDANE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Sindane v The State (510/10) [2010] ZASCA 157
(1 December 2010)

Coram:
PONNAN, MHLANTLA et TSHIQI JJA

Heard:
22 November 2010

Delivered:   1 December 2010

Summary:  Rape ─ appeal against conviction ─ assessment of evidence
totality of evidence to be considered ─ whether all elements of offence
proved.

___________________________________________________________

ORDER

_____________________________________________________________________

On appeal from:  KwaZulu-Natal High Court (Pietermaritzburg) (K
Pillay and Van Zyl JJ sitting as court of appeal):
The appeal against conviction is dismissed.

JUDGMENT
_____________________________________________________________________

MHLANTLA JA (PONNAN JA and TSHIQI JA concurring):

[1] Does ‘rape’ mean rape is evidently what we are called upon to
decide in this case? The suggestion on behalf of the appellant being that
when the complainant repeatedly used that word during the course of her
evidence she had no real appreciation of its meaning or import. That
question arises against the following backdrop.

[2]   The appellant, Thokazane Sindane, an educator, was charged in the
Regional Court, Pietermaritzburg with rape involving his 19 year old
domestic worker. The charge against him was based upon an occurrence
at his home on Sunday, 24 July 2005. On 17 April 2007, the appellant
was convicted of rape and sentenced to ten years' imprisonment. An
appeal against his conviction was dismissed by the KwaZulu-Natal High
Court (Pietermaritzburg), (K Pillay J, Van Zyl J concurring). His appeal
is before us with the leave of that court.

[3] The complainant testified that on the day in question, she had gone
to church and on her return, found no-one at home. The appellant arrived
and let her in. She prepared food for him and thereafter carried on with
her other household duties. She was busy ironing when the appellant
approached her. He reminded her that in the past he had told her that he
loved her and reiterated those feelings for her. She ignored him and
carried on with her work.

[4] She testified that the appellant then started fondling her but she
pushed his hands away. He grabbed her from behind and threw her onto
the bed. He lifted her skirt, pulled her panty aside and raped her. She
cried and protested but no one heard her because the television set had
been switched on and the volume was high.

[5] After the incident, the complainant left the house. She attempted to
call her mother in order to report the incident but could not get through to
her. She waited for the appellant's wife and on her return made a report to
her about having been raped by the appellant. The appellant was
confronted by his wife about the allegation. Mrs Sindane berated him.
She was upset and broke down crying, which attracted the attention of
their neighbours.

[6] The complainant testified that she had never had sex before and
that she was a virgin when the appellant raped her. She was taken to a
doctor for treatment by Mrs Sindane, who by that stage was hysterical,
and two of her neighbours. She was advised by them to lie to the doctor
about the true identity of her rapists. The advice having been that if she
had told the doctor that the perpetrators were unknown she would qualify
for anti-retroviral treatment. According to the complainant, Mrs Sindane

thereafter convened a meeting with her (Mrs Sindane’s) relatives to
discuss what course to follow. She and certain other relatives later
accompanied the complainant to her mother where they reported the
incident.

[7] During cross-examination she admitted that the appellant had
stated that he wanted sex and was adamant that the appellant had raped
her.  She denied that she had falsely implicated him to secure financial
assistance for herself in the event that she fell pregnant.

[8] The complainant was thereafter examined by a district surgeon, Dr
Abdul Akoo, two days later. Dr Akoo testified that the gynaecological
examination of the complainant was quite difficult because she was very
anxious. She would not allow him to insert his fingers into her vagina
because it was very sore and tender. He recorded in the J88 form that her
vagina was very tender, there was a slight vaginal discharge and her
hymen had a bruise. Dr Akoo concluded that he could not exclude forced
penetration, albeit that he was not 100 per cent certain. During cross-
examination he stated that if any forced vaginal penetration had occurred,
then the injuries sustained by the complainant would be consistent with
those sustained by a virgin 48 hours prior to his examination of her.
According to him, the tissue in her vaginal area, which has a good supply
of blood, heals quite fast.  That, so he testified, may explain the absence
of tears 48 hours later.

[9] The appellant denied any involvement in the commission of the
offence. He testified that he had found the complainant outside the house
crying. She did not tell him what was troubling her despite his repeated
enquiries. He informed his wife, when she returned from church, about

the complainant's distraught state. The former went to speak to the
complainant and thereafter told him that the complainant had reported to
her that she had been raped by unknown boys. His wife subsequently
took the complainant to the doctor. When they returned, his wife
confronted him with the allegation that he had raped the complainant.  He
denied the allegation contending that the complainant had falsely
implicated him as she knew that he would be able to cover her medical
expenses if she became pregnant. He testified that he then decided to
‘stay away from this matter and to involve [himself] not in this matter’.

[10] The trial court cautioned itself that the complainant was a single
witness and was mindful of the approach to be adopted when evaluating
her evidence. The court accepted the complainant's testimony and
concluded that she had no reason to falsely implicate the appellant. It
rejected the appellant's version because it was 'so unlikely that it just
cannot be true'. The trial court accordingly convicted the appellant as
charged.

[11] The appellant appealed to the high court. In that court, various
arguments were advanced on his behalf, on appeal, but the question of
whether the complainant understood the full import of the word 'rape'
when she used it in her evidence was never raised. The court below held
that the magistrate had properly evaluated the evidence and that there was
no basis for interfering with its finding. It thus dismissed the appeal.

[12] This issue was raised for the first time in the high court during the
application for leave to appeal to this court. The high court appeared to
have been persuaded that it had some merit and accordingly granted leave
to appeal to this court.

[13] The common law crime of rape is defined as the unlawful and
intentional sexual intercourse by a male person with a female without her
consent.1 The slightest penetration is sufficient. Before us, the thrust of
the argument on behalf of the appellant was that the complainant did not
quite comprehend what the word 'rape' meant especially since she had
never had sexual intercourse before the incident. Counsel contended that
it was incumbent upon the State to have adduced evidence to prove that
she fully comprehended what the word meant.  Absent such elaboration,
so the contention went, an essential element of the offence, namely
penetration, had not been proved.

[14] That submission cannot prevail. It is necessary to refer to the
evidence in this regard. The record discloses the following twelve
references to the word 'rape' during the complainant's testimony:

'Prosecutor:     How do you know him?
Complainant:  I know him because he is the one who raped me. I was employed by
him.
. . .
Q:
Yes?
A:
The accused grabbed me from behind because I was facing the bed and he
pushed me onto the bed. He then raped me.
. . .
Q:
With your clothes on?
A:
As a matter of fact I was dressed in a skirt and panties, a long skirt which
eventually got torn during the struggle between myself and him. He then pulled the
panty to the side, he then raped me. . . . Two of the neighbours came and they
enquired what had happened and the accused's wife then explained that her husband,
one Thokozane, had raped me.

1 C R Snyman Criminal Law 4 ed  (2002) p 445.

. . .
Q:
What did you tell the doctor then?
A:
I said to the doctor that I had been raped coming from church by unknown
males.
. . .
Q:
You were a virgin when the accused raped you?
A:
Yes.'

[15] During cross-examination, the appellant’s counsel used the word
‘rape’ repeatedly. The complainant under cross examination was adamant
that the appellant had raped her. She replied as follows to questions put to
her:

'Q:
But on the day in question he reminded you that he wants sex, is it?
A:
Yes, that is what he said.
. . .
Q:
Before you arrived at accused home, after the church, had you been raped by
any boys?
A:
No
. . .
Q:
Why did you agree to say that you had been raped by unknown persons?
A:
I agreed because I did not want any serious infection.
. . .
Q:
Then how did he rape you with his pants on.
A:
I do not know when he took off his pants but when he grabbed me he had his
pants on.
. . .
Q:
Accused denies that he ever raped you.
A:
He did rape me.
. . .
Q:
Accused also puts it to you that you mentioned him as the person who raped
you for convenience so that you can be treated in case you have contracted a disease?
A:
I was raped by him.

. . .
Q:
Accused says what you told the doctor about the person who raped you was
correct.
A:
I was raped by him and he was intoxicated on the day in question.'

[16]   A perusal of the record clearly shows that the complainant, who
was 21 years old when she testified, repeatedly stated that she was raped.
There is nothing on the record to suggest that she did not understand what
the word ‘rape’ meant. The issue of penetration or what she understood
by the word rape was never canvassed during her evidence. There is not a
shred of evidence that suggests that the complainant did not appreciate or
understand the import of the word when she used it. In my view, on the
totality of the evidence, there can be no doubt that she fully
comprehended what rape entailed. By the end of her evidence it became
common cause that she had been raped. The only issue before the trial
court was the identity of the perpetrator.  The appellant’s defence in the
trial court, consistent with what the doctor had been informed on the
evening of the incident, was that some unknown males were the
perpetrators.

[17] Moreover, as an educator the appellant was not an unsophisticated
person. If indeed the contact between him and the appellant had fallen
short of penetration one would have expected him to have raised that in
his defence. I accept that there is no onus on him, however one would
have expected a person of his standing to take issue with the allegation
and dispute that penetration had taken place. He instead chose initially to
become aloof and at a very late stage, after he had already had two bites
at the cherry this technical defence was opportunistically raised on his
behalf.

[18]  To all of that must be added the conduct of the appellant's wife.
She became very upset when she heard the allegations. She scolded the
appellant. She cried and broke down. She made a noise which attracted
the attention of her two neighbours. She ensured that the complainant was
taken to a doctor. She even reported the matter to her relatives. It is clear
that the appellant’s wife was left in no doubt that something untoward
had happened in the house.

[19] Counsel for the appellant contended that the medical evidence was
neutral. There is no merit in that submission. It is prudent to consider the
J88 form in greater detail.  Dr Akoo noted that the hymen was bruised
and that the vagina was very tender and sore and there was a vaginal
discharge. It is common cause that the complainant had not been sexually
active prior to the incident.  Those observations are all consistent with
some kind of trauma to the complainant’s vaginal area. It follows that the
medical evidence, far from being neutral, in fact corroborated the
complainant's evidence that a sexual assault had occurred. There is
nothing to gainsay her evidence that the trauma was caused by the rape.

[20] In those circumstances, I am satisfied that the State proved all of
the elements of the offence and established the guilt of the appellant
beyond reasonable doubt. The appellant's version was correctly rejected
as not being reasonably possibly true. There is therefore no basis to
disturb the trial court's finding of guilt.

[21] For these reasons the appeal against conviction is dismissed.

_______________

N Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

APPELLANT:

L Barnard

Instructed by Ngubane Wills Inc

Pietermaritzburg;

Naude Attorneys, Bloemfontein

RESPONDENT:
R Blumrick
The Director of Public Prosecutions,

Pietermaritzburg;

The Director of Public Prosecutions,

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

1 December 2010

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Sindane v The State
(510/10) [2010] ZASCA (1 December 2010)

Media Statement

Today the Supreme Court of Appeal (SCA) dismissed an appeal by Mr T P Sindane (the
appellant) an educator, against his conviction by the KwaZulu-Natal High Court
(Pietermaritzburg) on a charge of rape, involving his 19 year old domestic worker.

In argument before this court, it was contended on behalf of the appellant, that the
complainant did not comprehend the meaning or import of the word 'rape' when she used it in
her evidence especially since she had never had sexual intercourse before the incident.

The SCA rejected this argument.  First, the issue of penetration or what the complainant
understood by the word rape was never canvassed during her evidence. Second, after a
close inspection of the record and on the totality of the evidence, this court could find no
indication to suggest that she did not fully understand what the term 'rape' encompassed. This
court held that the complainant fully comprehended what rape entailed. Third, accepting the
fact that the appellant did not bear an onus, one would have expected him to put in dispute
that penetration had taken place. Furthermore, the medical evidence corroborated the
complainant’s evidence that a sexual assault had occurred.

The SCA held that the State had proved all the elements of the offence and accordingly
dismissed the appeal.

--- ends ---