Nan who raped his 12-year-old niece loses his appeal to have his conviction and sentence set aside
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A KwaZulu-Natal man has lost his appeal to have his conviction and sentence for the rape and sexual assault of his niece, overturned.
The man, who was sentenced to 10 years for rape and five years for sexual assault, appealed the ruling in the Pietermaritzburg High Court.
According to the court papers, the incidents started in 2013 when the man’s niece was 12 years old. She was 21 years old when she testified during the trial in 2022. The man was convicted and sentenced in Durban Regional Court on October 18 in 2023. The sentences were ordered to run consecutively.
According to the court papers, the girl’s brother had participated in a sport activity and her parents had accompanied him to Johannesburg in March 2013. The girl stayed with her father’s relatives where her uncle also lived. According to court papers, on the night in question, the girl was watching television in the lounge with the man and his sister. After the man’s sister went to sleep, he pulled his niece by her hand from the lounge to the kitchen.
According to the court papers, he began kissing and fondling her.
“There was nothing said by either of them during this incident, and the complainant (girl) thereafter went to sleep. She did not tell anyone about the incident because she was scared and did not know what to do,” it read.
According to the court papers, the following day the girl was due to attend her friend’s party in the afternoon in Durban. A prior arrangement had been made by her father for her uncle to transport her to the party. Along the way, while the man was driving, he instructed the girl to take off her pants. She did not do so. When they reached a stop street, the man reached over from his driver’s seat and forcibly pulled down her pants.
“He proceeded to place his hand on top of her underwear and eventually inside her underwear,” it read.
In another incident in 2014, the girl and her family attended her uncle’s birthday celebration at a holiday home on the South Coast.
“The complainant slept in the same room with her brother, but used different beds. On the second night, the appellant (her uncle) entered her room and attempted to climb on to her bed by pushing the complainant to the side,” it read.
According to the court papers, during this encounter the man was drunk, and the girl pretended to be asleep. When the man failed in his endeavours, he grabbed her wrist and attempted to pull her out of bed. As a result of the commotion, the girl’s father who was sleeping in the next room, came to her room.
“Upon his arrival, the appellant acted as if he wanted to climb on to the top part of the bunk bed by grabbing the staircasing.”
According to the court papers, due to the man’s state of intoxication, the girl’s father could not convince him to leave the room. As a result, the father instructed the girl to sleep with her mother in the next room while he slept in the bunk bed. According to the court papers, the girl testified that her father at some stage requested her uncle to repair her cellphone. She said subsequently, the man claimed that he had seen her inappropriate photos with a pillow and would forward those photos to her parents.
The girl said she was startled and did not know what photos he was referring to. She said the man did not share any information about these photos despite her requests. According to the court papers, the final incident occurred during the wedding of her uncle’s cousin, which was held at the cousin’s residence in 2019. When the wedding was over and the girl was walking from the back of the house towards the car, she encountered the man in the passage.
He pushed her against the wall and told her that he wanted to have sex with her. She managed to push past him and left.
“The complainant did not tell anyone about all these incidents because she was scared and did not think anybody would believe her.”
According to the court papers, she eventually mustered the courage and informed her boyfriend in 2020.She said the disclosure was prompted by the events of rape and the killing of the young woman at a post office in Cape Town.
“In addition, she was much more comfortable to share the events with her boyfriend but also implored him not to divulge any of the said information,” it read.
According to the court papers, the uncle sent a WhatsApp message to the girl asking if she told anyone about what occurred between them and if she enjoyed it, in May 2021. Her response was that she vividly remembered the man taking advantage of her when she was 12 years old and thereafter proceeded to recount what he had done to her.
“She requested that the appellant must not remind her of these incidents in future and the appellant apologised. The complainant thereafter reported the incidents to her mother and showed her the above-mentioned messages. The appellant was thereafter arrested and charged,” it read.
According to the court papers, when the man testified, he denied all allegations of rape and sexual assault. The man alleged that the real reason the girl filed the charges against him was because he had observed nude videos of her while fixing up her phone. He wanted to inform her parents about this inappropriate behaviour. However, she requested him not to.
According to the court papers, the man “attacked” his conviction on the basis that the State failed to prove the crucial elements of the offences, namely, the absence of consent to the sexual act. The man’s legal representative further submitted that the State failed to prove that the girl was penetrated.
In handing down judgment, Judge Sanele Hlatshwayo said the man’s contention that the girl’s failure to push him away and to do anything during the incidents suggested, or gave him an indication, that she was a consenting party to his conduct was untenable.
“For starters, the appellant denied committing any of the acts of rape and sexual assault. Secondly, I have found that there is strong evidence that the appellant knew the complainant did not consent. More pertinently this contention is not founded on anything tangible regarding the conduct of the complainant but is based solely on myths alluded to earlier concerning the victim’s behaviour during the rape.”
Judge Hlatshwayo said turning to the issue of penetration, the trial court found the evidence of the complainant credible. He said the evidence of the girl regarding the existence of sexual abuse by the man was supported by WhatsApp communications between them where she recounted the abuse suffered when she was 13 years old. Judge Hlatshwayo said the man was convicted of a violent and heinous crime of rape.
“The complainant was 12 years old at the time. He took advantage of the trust placed in him both as her uncle and by her family. By violating the complainant, he had left her with trauma and long-lasting psychological scars which still affect her as an adult.‘The appellant’s conduct is frowned upon by all right-thinking and self-respecting members of society.
“Those factors played a critical role in determining the sentence that is appropriate. For those reasons the appeal on both conviction and sentence must fail.”
Judge Hlatshwayo ordered that the sentences must run concurrently.