REPORTABLE

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 542/11

In the matter between:

M M

Appellant

and

The State

Respondent

Neutral citation: MM v S (542/11) [2012] ZASCA 5 (8 March 2012)
Coram:
MTHIYANE DP, HEHER, MAJIEDT and WALLIS JJA
and NDITA AJA.
Heard:
24 February 2012
Delivered:  8 March 2012
Summary:  Criminal law – rape on a seven year old girl– whether rape
proved – failure to call the doctor who examined the complainant to
explain contents of medical report – conviction altered to one of indecent
assault  – appropriate sentence.

ORDER

On appeal from: Limpopo High Court, Thohoyandou (Makgoba AJ
sitting as court of first instance) it is ordered that:
The appeal is upheld to the extent that the appellant’s conviction for rape
is replaced by a conviction of indecent assault and his sentence of life
imprisonment is altered to one of ten years imprisonment.

JUDGMENT

WALLIS JA (MTHIYANE DP and MAJIEDT JA concurring)

[1] This appeal is against the appellant’s conviction of the rape of a
seven year old girl and the sentence of life imprisonment imposed upon
him for that offence. The alleged rape occurred on Wednesday, 31 March
2004. The appellant was arrested on 7 April 2004 and remained in
custody pending his trial. The trial was conducted before Makgoba AJ on
11 and 12 October 2004, on which latter date the appellant was convicted
and sentenced. The appeal is before us with leave granted by Mann AJ on
11 May 2009.

[2] Two disturbing features emerge from that brief recital of events.
The first is that it took four and a half years for the appellant to have his
application for leave to appeal heard and the second that it has taken
nearly three more years after being given leave to appeal for his appeal to

come before this court. That is entirely unacceptable. In terms of
s 35(3)(o) of the Constitution the appellant had a right to an appeal to, or
review of his conviction and sentence by, a higher court. Delays of this
duration negate that right either wholly or in part. That this is largely
what has occurred in this case is apparent from the following sorry litany
of facts.

[3] The appellant sought leave to appeal within one month of the
conclusion of the trial. A request to process that application on his behalf
made in December 2004 to the Justice Centre in Thohoyandou, which had
provided him with legal representation during his trial, appears to have
gone unanswered. In February 2005 the appellant submitted a request to
the high court to be furnished with the complete court record. There was
no response. Further enquiries by the appellant in July and September
2005 went unheeded. He resorted to a complaint to the Minister of
Justice, who caused her administrative secretary to write to the registrar
of the high court in Thohoyandou in October 2005 to remind him that in
terms of s 34 of the Constitution everyone has a right of access to court
and that a public officer should not prejudice that right. The lack of
response prompted a reminder on 14 November 2005. Eventually on
12 December 2005 the registrar wrote to the appellant to tell him that in
2004 he (the registrar) had asked the Justice Centre to assist him with his
appeal. There was no apparent attempt by the registrar to ascertain why
the Justice Centre had not done so. The letter went on to add:
‘Should you wish to proceed with the matter without a legal representative, feel free
to confirm such intention with my office.’

[4] In December 2005 the appellant invoked the assistance of the
Public Protector, who wrote to the registrar. No response was received

and the Public Protector wrote again in February 2006. That prompted the
registrar to send a copy of the December letter addressed to the appellant.
Meantime apparently a representative of the Justice Centre visited the
appellant in January 2006 and in February he was told that he would have
to pay for the court to prepare the record of proceedings. In March 2006
money was deducted from his account at the prison for this service but no
record was forthcoming. In May, after a further communication from the
Public Protector, the registrar wrote to the appellant saying that
‘transcribed records are obtainable from Sneller Verbatim (Pty) Ltd’ and
that payments must be forwarded to their offices prior to quotation. His
cheque was returned. The appellant then sought a quotation from Sneller
for the preparation of the record and in October 2006 was told R3 500
was required. He did not have this, but made unsuccessful attempts to
raise the money with the assistance of his family. In February 2007 he
wrote to the Judge President of the high court in Thohoyandou and in
May 2007 he again wrote to the registrar asking that the State pay for the
transcription of the record as he was in jail and his parents were
pensioners. That finally attracted an affirmative answer in July 2007,
while in June 2007 the Justice Centre was again asked to assist him with
his appeal. The record was finally produced on 10 August 2007 but
nothing happened thereafter. It appears from subsequent correspondence
that he was told that it had been sent to the trial judge for him to correct.
Whether this is correct is unclear because in dealing with the application
for leave to appeal Mann AJ noted that the record was a simple one, with
no inaudible passages, and the judge’s notes were in the file.

[5] The continued inaction prompted the appellant once more to
approach the office of the Minster of Justice. Nothing came of this and in
February 2008 the appellant again wrote to the registrar asking ‘how long

it takes for the Judge to complete his honourable corrections of the
record’. His next letter in March 2008 starts somewhat plaintively:
‘I suppose you would be wondering what happened to me’;
and goes on to complain that six months have elapsed with no progress or
response concerning the judge’s ‘processing his honourable corrections’.
It ends by asking, ‘For how long should I continue to wait?’ There was
apparently a further letter in May because on 2 July 2008 the registrar
wrote saying that:
‘The records of your case has been asked for. You will receive same as soon as it is
received.’
That was not a helpful response and it is no surprise to find that the
appellant then wrote an angry letter describing these letters as
‘accumulated empty promises’ and complaining that between the registrar
and the Legal Aid Board they were playing ‘hide and seek’ with him.

[6] There were then further delays that are undocumented in the record
but resulted in the application only being heard on 4 May 2009 and
judgment granting leave to appeal being given on 11 May 2009. At least
Mann AJ had a proper appreciation of the need for swift action. However
once he had granted leave to appeal the delays set in once again. In
August 2009 the Thohoyandou Justice Centre wrote to the registrar
expressing surprise that the records ‘regarding argument’ had not been
transcribed. The fact that this was entirely unnecessary and contrary to
the rules of this court governing the preparation of records appears to
have escaped them. By September 2009, however, they had been
prepared and sent to the Justice Centre with a letter saying that they ‘now
owe our office a fully prepared record’ for this court. It was only in
November 2009 that the registrar of the high court sent the record to the
registrar of this court. That record commences with an indictment in an

entirely different case and is followed by a statement of substantial facts
and list of witnesses in that other case.1 No notice of appeal was
delivered, but in January 2010 an application to condone the late filing of
the appeal record and reinstating the appeal was lodged together with
affidavits by the representative of the Justice Centre and the appellant in
which there is no explanation at all for the failure to lodge a notice of
appeal.

[7] This sorry mess is attributable to all concerned having no regard to
the appellant’s rights and the difficulties confronting him, as a prisoner
serving a life sentence, in pursuing his appeal properly. No-one seems to
have had any regard for the need to deal with applications of this sort
expeditiously. Nor was any regard paid to the provisions of the Criminal
Procedure Act2 and the provisions of the rules of this court in regard to
the preparation and lodging of records and the preparation of cases for
consideration by this court. In the result some seven and a half years have
elapsed since the appellant’s conviction, during which he has been
incarcerated,3 whilst he has tried steadfastly to pursue the appeal that is
his right. The one person who has not been at fault in all this is the
appellant, most of whose letters have been couched with studied courtesy
and patience. To the extent that his appeal has not been pursued in
accordance with the letter of the law that non-compliance should be
condoned. As to the rest the registrar of this court will be directed to send
a copy of this judgment to the Director-General of the Department of
Justice for consideration of appropriate action against the registrar of the
High Court in Thohoyandou and to the head of the Justice Centre for

1 The correct documents were filed with counsel’s heads of argument.
2 Act 51 of 1977.
3 He has in all been in custody for almost exactly eight years.

consideration of the conduct of the officials employed in the Justice
Centre in Thohoyandou.

[8] I turn then to the merits of the appeal. The appellant is alleged to
have raped a seven year old girl in her own home on the afternoon of
31 March 2004. According to the complainant she and two other girls, her
cousin and a friend, were looking for locusts in a field when the
appellant, who is her uncle, called them. She was given a bag to carry and
take inside the homestead, which she did. She said that the appellant
followed her into the home and shut the door. She then asked him for
money to go and buy chips and he gave her 80 cents. She said that he
then undressed her, placed her on the sofa and ‘put his penis on my
private part’. She explained that he had removed the clothes that he was
wearing before doing this. As far as the other two girls were concerned
she says that the appellant had ordered them to leave before this incident
occurred.

[9] The complainant’s evidence was very brief and in some respects
cryptic. She was not asked to explain what she meant when she said that
the appellant placed his penis ‘on’ her private part. It is clear that this is
the expression she used, because the trial judge asked her, at the
conclusion of her evidence in chief, ‘what did he put on your private
parts?’ Then, after the judge had asked her several leading questions, she
said that the appellant ‘did evil things to her’ and when asked to explain
what type of things said: ‘He was raping me.’ Unfortunately there was no
attempt to explore with her what she understood by this, nor is it clear,
she having given evidence through an interpreter, whether this accurately
reflected her description of the incident. She was after all a child and
children do not usually use technical language such as ‘rape’ to describe

sexual acts or ‘vagina’ and ‘penis’ to describe their private parts.4
Euphemisms of some or other sort are more usual. However, an
interpreter might well in the formal arena of a courtroom use the more
technical expression as an equivalent. It would have greatly assisted in
considering this appeal if some care had been taken to ascertain whether
the statement that the appellant was ‘raping’ her was compatible with her
earlier description of the appellant’s penis being placed ‘on’ her private
part.

[10] There are a number of problems with the interpretation of the
evidence and this was complicated by the defence attorney apparently
being oblivious to these nuances. Thus she put to the complainant that the
appellant would deny that he had ‘sexual intercourse’ with you, without
explaining the implications of the expression. Hardly surprisingly that
attracted the response:
‘He did have sexual intercourse with me.’
What one cannot tell is whether this reflected the actual words used by
the complainant or was the interpreter’s manner of conveying a denial of
the basic proposition couched in the language of the cross-examiner. A
perusal of the record demonstrates that the interpreter’s use of English
was uncertain. On occasions the interpreter added explanations that
clearly were not a reflection of what the witness had said. Once, having
started to translate an answer, the interpreter corrected the translation
halfway through from a literal word for word translation to one that was
more grammatically correct in English. In the course of doing so the word

4 When asked where she had been injured the complainant merely pointed to her private parts. The
interpreter said ‘She is pointing to her private part my lord, vagina.’ This suggests that the interpreter
might have been concerned to use the formal English word. The complainant did not reply to this
question by saying ‘on my vagina’ yet elsewhere in her evidence she is reflected as freely and
accurately using that expression.

originally used to translate what the witness said fell away.5  On that
occasion it did not in substance alter the meaning of the answer but it
reveals that the interpretation may not have been precise in rendering
what the witnesses actually said. All in all one is left with a measure of
uncertainty as to the accuracy of the translation in relation to critical
issues in this case.

[11] In cross-examination the focus largely fell on whether and to
whom the complainant had reported this incident. She initially said that
she had not spoken to anyone about it, but then said that she had told her
grandmother who was looking after her at the time. When confronted
with the discrepancy she reversed her position and said that she had not
told her grandmother. From that point on she maintained that she had not
told anyone about the incident. It was put to her that the appellant would
say that she had gone into the house with him because she had asked him
for money to go and buy chips and that he gave her 80 cents, but she
wanted two Rand from him. When she tried to take some more money he
held her by her tummy and pushed her out of the house. When this
happened she knocked against a chair.

[12] The complainant’s cousin, herself a 13 year old girl, gave evidence
that largely corroborated that of the complainant. She confirmed that they
were out looking for locusts; that the appellant approached them and gave
the complainant a bag to take into the house for him; that he followed her
into the house and closed the door and then, speaking through a window,
he instructed her and the other girl to leave. Contrary to the complainant’s
denial she said that on the following day the complainant had told her

5 The result was that instead of saying that the appellant ‘undressed’ the interpreter rendered the answer
as ‘he took off the clothes he was wearing’.

what had happened to her in the house. She denied the suggestion in
cross-examination that she had been present whilst the complainant went
into the house and left with her.

[13] The complainant’s grandmother said that she saw that the
complainant had 80 cents with her when she returned from playing on the
afternoon of 31 March 2004. She said that when she questioned the child
on where she obtained the money she was told about this incident
involving the appellant. Her description matched that of the complainant
but a difficulty in translation emerged over precisely what the appellant
was said to have done to the complainant. The grandmother’s evidence,
as translated, was that she was told that the appellant had ‘slept over her’.
The interpreter explained that she used the Venda expression ‘u lala’.
This was not explored further. It was plainly significant because it reflects
the point already made that children are inclined to use euphemisms to
describe sexual matters. The grandmother said that after learning of this
she took the complainant to the clinic because she observed that she was
not well.

[14] There were contradictions in the grandmother’s evidence regarding
the reports made to her. The impression she gave in chief was that she
learned of the incident from questioning the complainant about the money
in her possession. In cross-examination she said that she initially received
a report from the children the complainant was playing with, and then
further corrected that by saying that the report was made by the mother of
one of these children. It was only after receiving this report on the
Thursday (or possibly the Friday) after the incident that she interrogated
the child and was told about what happened. What is certain, however, is
that she learned of something that aroused sufficient concern for her to

take the complainant to the local clinic on the Saturday morning, from
where she was referred to the Donald Fraser hospital for examination by a
doctor.

[15] As appears to be an increasing feature of cases such as these the
doctor’s report was simply handed in by consent and the doctor was not
called to give evidence. That practice is generally speaking to be
deprecated. It means that there is no opportunity for the doctor to explain
the frequently subtle complexities and nuances of the report; to clarify
points of uncertainty and to amplify upon its implications and the reasons
for any opinions expressed in the report. That may make the difference
between a conviction and an acquittal or perhaps a conviction on a lesser
charge. Depending on the areas where there is a lack of clarity, the lack of
clarification may either benefit or prejudice an accused. Neither result is
desirable. Magistrates and judges who are confronted with these reports
without explanation do not have the requisite medical knowledge to flesh
out their full implications. Unless therefore there can be no confusion, for
example in a case where the fact of rape is admitted and the only issue is
one of identification of the perpetrator, it will generally be desirable for
the doctor to give evidence in support of his or her report. In this case it
was undoubtedly necessary and the fact that the doctor was not called has
rendered the consideration of this appeal far more complicated than it
should have been.

[16] The doctor reported that he observed bruising and abrasions on the
medial aspect of the child’s labia minoris.6 The hymen was disrupted
wide and irregular and the posterior fornix7 was visible, but the

6 The inner folds of skin forming the margins of the vaginal orifice.
7 The rear of the arch shaped cavity in the interior of the vagina.

implications and causes of this were not explained. Nor were the fact that
the complainant had a yellowish discharge from the genital area and the
doctor observed ‘erosions ventrally’.8 The firm conclusion was expressed
that the complainant had been the victim of sexual assault. The report
does not, however, say that she was raped and judging by the difficulties
the doctor encountered with a physical examination9 actual penetration
would have been difficult to achieve. Whether penetration occurred is
fundamental to the correctness of the conviction of rape.10

[17] The appellant’s evidence was in accordance with the case put to the
complainant by his counsel. He said that he encountered the complainant
and her cousin on the road as he was making his way home from the
fields. The complainant asked him for money to buy chips and he was
happy to give it to her as he had done on previous occasions. When they
came to the house he went in with the complainant following him and the
cousin in the entrance. He said that he placed a chair against the door to
prevent it from closing. He gave the complainant 80 cents from some
coins he kept on a shelf but she wanted more and tried to take it. He
stopped her by holding her round the tummy and pushed her away out of
the house. As he did so she bumped herself against the chair holding the
door open and started to cry. However she rapidly composed herself and
he watched her walk away with her cousin, showing her the money she
had been given as they walked. He denied the allegations concerning the
alleged rape.

8 Ulceration in the abdominal area.
9 His note was originally that the vagina was ‘shut’ but he deleted this and wrote ‘little finger’. Again
there was no explanation.
10 Penetration was a common law requirement and it is continued in the present definition of the crime
of rape in s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007,
although that definition extends the scope of the crime to other penetrative acts.

[18] The appellant’s conviction can only be sustained if on a
consideration of all the evidence his version of events cannot reasonably
possibly be true. Whilst in many cases the fact that an accused person
gives a false version of events is not decisive of the merits of a
conviction, in this case where the falsity relates to events on a particular
day at a particular place involving him and the complainant, if his version
cannot reasonably possibly be true its falsity lends strong support to the
truth of the complainant’s evidence.

[19] The objective and undisputed evidence shows that the complainant
was subjected to a sexual assault. She had been in the house with the
appellant on the Wednesday afternoon. Both she and he agree that she
was tearful when she left the house because she had been hurt while
inside. By Thursday, or at latest Friday, her grandmother realised
something was wrong and took her to the clinic on the Saturday morning.
That is when the diagnosis of sexual assault was made. The appellant was
arrested on the following Wednesday, which indicates that the
complainant had identified him immediately as the perpetrator. If the
appellant’s story is correct then another man sexually assaulted the
complainant at another time and probably another place and for some
inexplicable reason this seven year child has from the outset laid the
blame on a close relative who has always been kind to her and chosen to
conceal the identity of the true perpetrator (or if unknown to her to say
that she was assaulted by an unknown man). The appellant’s description
of grabbing the child by her tummy and her hurting herself by bumping
against a chair does not explain the injuries in her vaginal area. His
suggestion that her grandmother put the child up to telling a dishonest
story in order to take revenge for a dispute over the boundaries of a field
at a time when he was at best a youth in his teens is utterly incredible.

[20] When the evidence is weighed in its totality it amply supports the
trial court’s finding that the appellant’s version could not reasonably
possibly be true and that the evidence of the complainant, when viewed
with the appropriate caution called for because of her tender years and the
fact that on the assault itself she was a single witness, could be accepted.
Accordingly a conviction was appropriate. The only issue is whether that
should be of rape or of indecent assault.11 That depends on whether the
evidence was sufficient to show beyond reasonable doubt that penetration
occurred. In my opinion in the light of the lack of certainty about the
purport of the complainant’s evidence and the absence of any explanation
from the doctor of his clinical findings it was not.

[21] I accept for the purposes of this judgment that Professor Milton12 is
correct in saying that the slightest penetration is sufficient and that this
includes any degree of penetration, however minor, into the labia,
although neither Van Leeuwen, whom he cites in support of this
proposition,13 nor the cases he quotes, supports that proposition. It does,
however, accord with the position in England14 and in the United States
of America.15 If the doctor’s report had been unequivocal in saying that
rape had occurred, that would have overcome the concerns about the

11 As the offence was perpetrated before the enactment of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act the offences are those under the common law. Under s 261(1) of the
Criminal Procedure Act, as it read at that stage, indecent assault was a permissible verdict on a charge
of rape.
12 J R L Milton South African Criminal law and Procedure, Vol II, Common Law Crimes (3 ed 1996)
448, footnote 122.
13 Simon Van Leeuwen Censura Forensis 1.5.23.12 (translated by Margaret Hewett, 2001). The
reference to stuprum in this passage accords more nearly with the approach in Germany and some other
jurisdictions than with the view of Professor Milton. See J M T Labuschagne ‘Die Penetrasievereiste
by Verkragting Heroorweeg (1991) 108 SALJ 148.
14 J C Smith Smith and Hogan Criminal Law (10 ed, 2002), 467.
15 James L Rigelhaupt Jr JD What constitutes penetration in prosecution for rape or statutory rape 76
ALR 3d 163 (Annotation). The author provides summaries of a vast number of cases from various
courts in the USA that reveal how difficult it may sometimes be to establish that penetration has
occurred when the medical evidence is inconclusive.

complainant’s evidence and its interpretation, but it is not. Abrasions and
bruising of the surface of the labia minoris are no certain indication of
penetration. They are consistent with being external injuries alone. The
disruption of the hymen may be an indication of penetration, but it is not
decisive unless directly linked to the sexual assault, which, in the absence
of explanation by the doctor, it is not. In addition the complainant’s
evidence is that while she felt pain during the assault there was no
bleeding. The presence of erosions ventrally, the precise location of
which the doctor did not indicate, takes the matter no further. Doctors
conducting examinations of this type are usually aware of the requirement
of penetration for rape and when they are satisfied that a sexual assault
has involved penetration they record that the victim was raped. Had he
been called as a witness and said that there was penetration he would no
doubt have been cross-examined on his failure to say so expressly in his
report. Counsel for the defence would have been foolhardy to insist on
the doctor being called in the light of the inconclusive language of his
report. In the absence of evidence from the doctor as to the precise nature
of the sexual assault that he concluded from his examination of the
complainant had been perpetrated upon her it would be unsafe to say on
the basis of his evidence that penetration has been proved beyond
reasonable doubt. This is not a case such as S v F,16 referred to by my
brother Heher JA, where the fact of penetration was accepted and the
only issue was whether that was with the accused’s penis or his finger.

[22] The question then is whether the lack of clarity in the doctor’s
report is overcome by the complainant’s evidence. I have already drawn
attention to the limitations of her evidence. When using her own words
she expressly said that the appellant placed his penis ‘on’ not ‘in’ her

16 S v F 1990 (1) SACR 238 (A) at 247i-248a.

vagina. On the occasions when she used the words ‘raping’ and ‘sexual
intercourse’ her understanding of these was not explored to see whether
she was, in the expression used in the American cases, ‘a person of
understanding’ in regard to their meaning. The fact that the cross-
examiner did not explore these terms with her does not in my view take
the matter anywhere. It was for the prosecution to do so and to make it
clear that she understood them and understood and intended their
consequences. The difficulty facing the cross-examiner in doing so, when
the version of her client was a denial of any sexual acts, is apparent. Any
attempt to explore these questions could have remedied the deficiencies
in the prosecution case and elicited detail that would be detrimental to her
client’s interests.

[23] The appeal must therefore succeed and the conviction of rape be
altered to one of indecent assault. As the assault was perpetrated on a
child under the age of 16 years it carries with it a statutory minimum
sentence of ten years imprisonment and no substantial reason was
advanced for departing from that sentence in the present case. This was a
violation of a young child and involved both an abuse of authority and an
abuse of trust.

[24] It is most unsatisfactory to have to reach a conclusion on the basis
of uncertainty concerning the meaning of the medical report. Had the
doctor been called as a witness and his evidence had revealed that
penetration had occurred, then the conviction of rape would have been
upheld and in the absence of substantial and compelling circumstances
the sentence decreed by the legislature would have remained in place.
That would have given satisfactory justice to his victim. On the other
hand if the doctor’s evidence had made it clear that it could not be said

with certainty that penetration had occurred the trial judge would no
doubt not have convicted the appellant of rape, but of the lesser offence
of indecent assault and a substantial but lesser sentence would have been
imposed. Given current norms for the grant of parole the appellant would
probably have been released from prison by this time. All of this
demonstrates that the decision not to call the doctor was erroneous.
Regrettably this is too frequently a feature of rape cases and judging by
the experience of the members of this court it is increasingly rare for the
doctor who examined the complainant in such cases to be called to
explain the medical report. We were however informed from the Bar that
there is no instruction in the office of the National Director of Public
Prosecutions that doctors should not be called. That is a start to
addressing the problem and it may be helpful to afford some guidance to
prosecutors. In principle unless there is no issue about the fact of rape the
doctor should be called as a witness. Certainly wherever the implications
of the doctor’s observations are unclear the doctor should be called to
explain those observations and to guide the court in the correct inference
to be drawn from them.

[25] In the result the appeal succeeds to the extent that the conviction of
rape is set aside and replaced by a conviction of indecent assault. The
sentence of life imprisonment is set aside and replaced by one of ten
years imprisonment.

M J D WALLIS
JUDGE OF APPEAL

HEHER JA (dissenting, NDITA AJA concurring):
[26] I have read the judgment of Wallis JA. I disagree only on the
question of whether the State proved that the appellant penetrated the
complainant (as is necessary to constitute the crime of rape). As there was
no direct evidence establishing the fact, it was necessary that, on a
conspectus of all the circumstances, the only reasonable inference was
that penetration had occurred.

[27]  What is required is penetration of the labia by the penis albeit to a
slight extent: South African Criminal Law and Procedure 3 ed (by J R L
Milton) Vol II 448, fn 122 and the authorities there cited.

[28] The complainant was a young child. Her evidence was
uncomplicated. The interpretation from the Venda language shows signs
of deriving from a speaker who was not thoroughly at home with English.
Nevertheless there can in my view be no reasonable doubt about what
happened to the victim.

[29] The appellant divested himself and the complainant of their
clothes. He took her to a sofa and lay down on top of her. He placed his
penis ‘on’ (thus the interpretation) her vagina. She felt pain in her vaginal
region. She screamed. Afterwards she did not bleed. She was able to walk
home unassisted.

[30] In relation to what happened, the complainant used the words
‘raping’ and ‘sexual intercourse’ (thus also the interpretation). Neither
expression was placed in issue by the cross-examiner and no investigation
was conducted by the court to test the justification for their use.

[31] The complainant was medically examined, probably on the second
day following the incident. The doctor recorded his findings:
1.
The medical aspect of the labia minora was abraded and bruised.
2.
The hymen was ‘disrupted wide’.
3.
The posterior arch of the vagina was visible.
It was not suggested by counsel that the injuries derived from a non-
traumatic cause (eg disease) or from the insertion of a foreign object
(other than the appellant’s penis) such as a finger, or were self-inflicted.
In the absence of facts such possibilities were no more than speculation:
cf S v F 1990 (1) SACR 238 (A) at 247i-248a.

[32] ‘Abraded’ means ‘worn by friction’; ‘disrupted’ connotes
disturbance by breaking or shattering. These are the unambiguous
ordinary senses of the words used by the doctor (common to the Shorter
Oxford, Websters and Encarta dictionaries). The findings are consistent
only with penetration. If counsel for the appellant wished to test the
appropriateness of the words chosen he should have asked for the
evidence to be led and not simply admitted the report. But he did not do
so. The doctor’s examination was painful for the complainant. Her vagina
admitted only the doctor’s little finger. Neither of those considerations is,
in my view, sufficient to militate against the clear inference that the
appellant attempted, and, at least partially, succeeded in achieving
penetration.

[33] The inference is consistent with the manifest intention of the
appellant, an intention not interrupted or frustrated or resisted before he
had carried out his purpose

[34] I would dismiss the appeal against the conviction. As this is a

minority judgment it is unnecessary to consider whether the sentence
should stand.

____________________

J A Heher

Judge of Appeal

Appearances

For appellant:

M J Manwadu,

ThohoyandOu Justice Centre,
Care of Bloemfontein Justice Centre

For respondent:

NR Nekhambele

National Director of Public Prosecutions,

Thohoyandou.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  8 March 2012

Status:  Immediate

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

M M v The State

The Supreme Court of Appeal (by a majority) set aside the
appellant’s conviction of rape and substituted a conviction of indecent
assault. His sentence of life imprisonment was altered to one of ten years
imprisonment. The court criticised the officials who had failed to assist
the appellant in pursuing his appeal, with the result that it took five years
for his application for leave to appeal to be heard and further three years
before the appeal cold be heard. In the result the appeal was only
disposed of after the appellant had already served eight years of his
sentence.
The appeal succeeded because of the inconclusive nature of the
complainant’s evidence as to the precise nature of the assault perpetrated
on her and the equivocal terms of the doctor’s report. The court stressed
that unless the doctor’s report is unequivocal in its terms and accepted a
correct it is desirable to call the doctor as a witness and not simply to
hand in the medical report by consent. Only by the doctor giving
evidence can the court be informed of the nature and effect of the
doctor’s observations and conclusions from the examination of the
complainant. The failure to call the doctor as a witness, where the

medical report is equivocal, may lead to an injustice either to the
complainant or to the accused.