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[2015] ZAWCHC 171
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Ganga v S (A345/2015) [2015] ZAWCHC 171; 2016 (1) SACR 600 (WCC) (18 November 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: A345/2015
DATE: 18 NOVEMBER 2015
In the matter between:
MALCOLM
GANGA
...............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT DELIVERED ON 18 NOVEMBER
2015
RILEY, AJ
[1] The appellant was charged in the
regional court sitting at Parow on one count of rape in contravention
of
Section 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 32 of 2007
, a contravention of
Section 55
i.e. attempt to commit a sexual offence and a contravention of
Section 5(1)
i.e. sexual assault under the same Act.
[2] According to the charge sheet it is
alleged:
1. On count 1 - that during October
2013 and at [B…….], [D…..] the appellant
wrongfully and intentionally committed
an act of sexual penetration
with the complainant, [M…..] [M……] (‘M…..’),
who was eleven
years old at the time, by penetrating her vagina with
his penis, whilst she was under the age to provide consent.
2. On count 2 - it is alleged that
during 2013 at the same place the appellant wrongfully and
intentionally attempted to commit
a sexual offence with [J……]
[d…..] [J…..] (‘J……’), an
eleven year old girl
by lifting up her skirt and attempting to touch
her vagina.
3. On count 3 - it is alleged that
during 2013 at the same place referred to in counts 1 and 2, the
appellant wrongfully and intentionally
committed an act of sexual
assault in respect of [S……] [D……]
(‘S……’), a nine
year old girl by touching
and rubbing her vagina.
[3] The appellant who was legally
represented in the court a quo pleaded not guilty on all three counts
on 1 July 2014.
[4] On 18/02/2015 he was convicted on
all three counts and on the same day sentenced to life imprisonment,
the court a quo having
decided to treat all the counts as one for the
purpose of sentence.
[5] The matter is before us on
appeal in terms of
s 309(1)(a)
of the
Criminal Procedure Act 51 of
1977
. The appellant has noted an appeal against both his conviction
and sentence.
[6] According to the accepted
evidence all the incidents occurred at the house of the appellant at
[B…….], an
informal settlement in the [D….]
area. It is common cause that the appellant has occupied his house
since 2009 and that
the complainants are either his neighbours and or
lived in close proximity to him. It is not in dispute that all the
complainants
and other children frequented the appellant’s
house daily and played inside or outside the house and/or watched
television
there. It is further not in dispute that the complainants
and the other children looked up to the appellant as a father figure
and trusted him. There can be no doubt that the complainants knew
the appellant very well and fondly referred to him as Uncle
[M……].
According to the evidence, the parents of the complainants also knew
and trusted the appellant.
[7] The complainant on count 1,
[M…..], testified that on the 19th October 2013, she went to
the appellant’s house
looking for her friend, [J……].
On her arrival she found the appellant who told her that [J……]
was
not there. He then asked her to fetch his cellular phone which
was in his room. On her return with the cellular phone, the
appellant
closed the door to the house. Appellant then took her to
the bedroom and pushed her onto the bed. He then closed her mouth
with his one hand and then used his other hand to take off her jeans
and panty. Appellant then inserted his penis in her vagina
and then
proceeded to have sexual intercourse with her. At a stage he
stopped, went to the window, looked out and then resumed
having
intercourse with her. When he finished, she dressed herself and
left. The next day she reported the incident to [J…….],
who in turn told her sister who then told [M…..’s]
father.
[8] She testified that she had no
reason to suspect that anything was amiss when he requested her to
fetch his cellular phone
as she respected him and trusted him. The
appellant had told her not to tell anyone and she did not tell her
father immediately
as she was concerned how her father might react it
if she told him.
[9] Sylvia Nomvalo Jaji, a
registered nurse and midwife who is also qualified as a forensic
examiner, in matters of sexual
assault, testified that on 20 October
2013 at 19h40 she examined [M…] at Karl Bremmer Hospital.
With reference to the J88
which she completed at the time of her
examination of [M…..’s] vagina, she testified that she
found that the para
uretheral folds, the labia minora and the
posteria fourchette were bruised. The fossa navicularis was torn and
that there was
a 5cm tear of the perinium, which is the area between
the general orifice and the rectum. As a result of her findings she
concluded
that the injuries were consistent with penetration or
interference to the vulva of the vagina with a hard object. In her
view
all the injuries she observed was caused within twenty-four
hours of her examination.
[10] [J……], the
complainant in count 2, confirmed that they frequented the
appellant’s house. She testified
that on an occasion when she
and other girls was at the appellant’s house in his bedroom
they played a game called ‘hopie
lê’. In this game
the participants would lay on top of each other. The game was played
on the appellant’s bed
and she testified that appellant laid on
top of her. On that occasion whilst they were still in the
appellant’s room, he
was sitting next to her and he then
started touching her body. He placed his hand on her thigh and was
moving it up her leg towards
her vagina. She told him to stop and
told him that she would tell her mother. She reported the incident
to her mother who told
her not to play there anymore and that if it
happened again she would report it to the police. She confirmed that
on the Sunday
which is the day after [M……] was raped,
that [M….] had made a report to her that appellant had raped
her the
previous day. She had told her sister, who in turn told
[M…..’s] father.
[11] [S……], the
complainant in count 3, testified that when she was nine years old
and in grade 3, she was playing
outside the appellant’s house
with her other girlfriends when it rained and they ran into his house
for shelter. When they
were inside, appellant suggested they play
‘poppehuis’. One of her girlfriends played the role of
the mother, appellant
was the father and she was the child. At a
stage and whilst they were in the room, the appellant placed his
hand on her vagina
over her clothes. He then went to her friend and
placed her on a chair and also touched her private parts. She made
it clear
to appellant that he should not do this to her. She also
testified about related incidents where the appellant had showed her
and her friend his private parts and an incident where he had lifted
her up and held her body against his private part.
[12] [J……..], the
biological mother of [J……], confirmed that in 2013
[J……] had told
her that appellant wanted to put his
hand on her vagina. She had told [J……] that she should
not play at appellant’s
house any longer and that if any such
incident happened again, she would report the matter to the police.
[13] [S…..’s] mother
testified that prior to them coming to live at [B……],
they lived in the same
area as appellant at [S…… W…...
D……]. She had never had problems with the appellant.
She testified
that when she came from work on a Monday, she heard
people talking about the rape of [M….]. Because [S…..’s]
name was also mentioned, she asked [S……] whether
appellant had done anything to her. [S……] denied
that
appellant had done anything to her. After making further inquiries,
she confronted [S……] again and asked her
why she was
not telling her the truth. She conceded that she had asked her
daughter twice or thrice before [S……..]
told her what
the appellant had done to her. She also admitted that she threatened
[S……] with a hiding if she did
not come out with the
truth. She testified that [S……] had told her that she
was scared to tell her as the appellant
had threatened her.
[14] The appellant testified in
his own defence and called a defence witness. On count 1 he
testified that he had gone to
Wynberg on the morning of 19 October
2013 with regard to his identity documents. He returned home about
at 11h00. His ‘wife
and son’ were not home as they had
attended a funeral and arrived home at about 18h00. He testified
that his defence witness,
[S…..] [C……] (‘C……’)
and two other females had been with him at his house the whole
day.
According to him [M……] and [J……] had
played in front of his door in the afternoon of that day
but were not
inside his house. They left at about 16h00. [C……] was
the last of the adults who left his house at
about 17h00 and his wife
arrived at 18h00. The next day [M….] and [J……]
arrived at his house at about 11h00
and ate there. When he and his
wife were resting after one in the afternoon, he heard [M…..]
and [J…..] shouting
that he was a rapist. When [M….]
and her father came to his house later the same day, her father told
him that [M…..]
alleged that he, appellant, had raped her. He
denied the allegation.
[15] Appellant’s defence
witness, [C……], testified that she arrived at
appellant’s house at 11h00
and confirmed that the other women
were there. She confirmed that they had been drinking beer. She was
not well on that day and
confirmed that she left at about 17h00. She
could not say what happened at appellant’s house between 17h00
and 18h00.
[16] The issue to be determined in
this appeal, is whether or not the state has proved the guilt of the
appellant beyond a
reasonable doubt and in particular whether the
trial magistrate had erred and misdirected herself in her evaluation
of the evidence
of the child witnesses.
[17] Ms [d…. J….]
contended on behalf of the appellant that the evidence of [M…..]
was not satisfactory
in all respects if regard is had to her version
of the events and how it came about that she had reported the rape.
She was critical
about the fact that [M…..] had only shared
what had happened to her after [J…… d…..] had
told her what
appellant had done to her. In addition she contended
that an adverse finding should be made as [M……] had
failed
to tell her father immediately what appellant had done to her
and because she had gone to appellant’s house the day after
he
had raped her.
[18] In so far as the evidence of
[J……] was concerned, Ms [d…….J…]
submitted in her heads
of argument that on [J……’s]
evidence, the appellant does not appear to have touched any specific
part of her
body whilst playing the game and that it was questionable
whether appellant had the intent to commit a sexual offence. During
argument she did not pursue this submission with any force.
[19] As far as count 3 is
concerned, she contended that the evidence of [S…….]
was not reliable as she only implicated
the appellant after her
mother threatened her and that her report about the sexual assault
was therefore not made voluntarily.
[20] On the whole, Ms [d….
J…..] contended that the court a quo had erred in rejecting
the appellant’s
version as untruthful as he had called a
witness to corroborate his version and that he should have been given
the benefit of the
doubt. Mr Burke who appeared on behalf of the
respondent contended that the trial magistrate had not misdirected
herself in evaluating
the evidence of the witnesses and that the
appellant had been correctly convicted.
[21] After summarising the
evidence of the child witnesses and referring to the relevant
authorities, the trial magistrate
in evaluating the evidence, found
as follows in respect of [M…..]:
‘Die klaagster het ‘n
sinvolle kronologiese weergawe gegee van die gebeure wat plaasgevind
het op 19 Oktober 2013.
Sy was uiters intelligent. As die hof kyk
na die manier hoe sy die vrae beantwoord het in haar
kruisondervraging asook in haar
getuienis in hoof, het sy dit uiters
goed beantwoord. Daar was geen weersprekings in die getuienis van
haar nie.’
‘By die toepassing van die
versigtigheidsreël [by] ‘n enkel getuie moet die hof ten
spyte van enige tekortkominge
of weersprekings steeds die getuienis
van ‘n enkel getuie oorweeg en dan besluit of hierdie getuienis
betroubaar is al dan
nie.’ The trial magistrate found
guarantees for the reliability of M…..’s evidence in the
medical evidence
and the fact that she had told J……
about the rape.
[22] In respect of the evidence of
Jolene, the trial magistrate found that she was a good witness. The
trial magistrate placed
reliance on the fact that she had made the
report to her mother about the appellant touching her in 2013, long
before the story
of the rape of M….. surfaced. The trial
magistrate further found that even though S….. was only nine
years old when
the incident took place, that she was a good witness
who could remember specific detail about events, like for example
that it
rained on the day of the incident, that appellant played
‘poppehuis’ with them and that she testified that there
were
other similar incidents of sexual nature that had occurred
between herself, the appellant and other young children at the
appellant’s
house.
[23] It is common cause that the
complainants who testified in regard to counts 1 to 3, are children
and that they are respectively
single witnesses in regard to the
incidents that they testified about. It is trite law that the
evidence of a single state witness
is always treated with caution and
in a criminal matter a conviction will normally follow only if the
evidence is substantially
satisfactory in every respect or if there
is corroboration. See Stevens v S [2005] 1 All SA (SCA) para 17.
Our courts have held
that evidence can be satisfactory even if it is
open to criticism. See S v Sauls
1981 (3) SA 172(A)
180G – H.
In S v V 2000(1) SACR 453 at 454 para 2 Zulman JA cautioned that
‘whilst there is no statutory requirement
that a child’s
evidence must be corroborated, it has long since been accepted that
the evidence of young children should
be treated with caution …,
and that the evidence in a particular case involving sexual conduct
may call for a cautionary
approach.’ In S v Hanekom
2011 (1)
SACR 430
(WCC) at para 10, Saner AJ similarly expressed caution in
regard to the ‘uncritical acceptance of the evidence both of a
single and child witness’. The learned Acting Judge stated
further at para 13 that ‘Indeed a court should be particularly
alert to an application of cautionary rules where factors such as
evasiveness on the part of the witness, the lapse of significant
period of time between the incident complained of and the trial; the
fact that a witness had a grudge …or a motive to falsely
implicate him and the fact that a witness may generally have had some
difficulty in separating reality from fantasy have to be
considered.’
See also S v J
1998 (4) BCLR 424(A)
;
[1998] 1 SACR 470
(SCA).
[24] Our courts have however long
since held the view that ‘while there is always the need for
special caution in scrutinising
and weighing the evidence of young
children, complainants in sexual cases, … the evidence of a
single witness, the exercise
of caution should not be allowed to
displace the exercise of common sense. If a judicial officer having
anxiously scrutinised
such evidence with a view to discovering
whether there is any reasonable possibility of conscious or
unconscious fabrication, is
satisfied that there is no such
possibility and that the evidence … may … be safely
accepted as proving the guilt
of the accused beyond reasonable doubt,
he should not allow his judgment to be swayed by fanciful and
unrealistic fears.’.
See R v J
1966 (1) SA 88
S.R., A.D. at 90
D – F; S v Snyman
1968 (2) SA 582
(A) 585 G – H and S v
Artman
1968 (3) SA 339(A)
340.
[25] What is clear is that a
general, immutable cautionary rule does not have to be applied to the
evidence of a complainant
in a sexual case and that it will depend on
the facts and circumstances of each case as to whether such an
approach is necessary
or not. See S v J (supra) and S v Gentle
2005
(1) SACR 420
(SCA) para 17.
Section 60
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
now clearly
provides that ‘a court may not treat the evidence of a
complainant in criminal proceedings involving the alleged
commission
of a sexual offence … with caution on account of the nature of
the offence.’
[26] According to common law,
evidence that the victim of a sexual offence complained about it
shortly after the incident as
well as evidence of the particulars of
the complainant, may be given by the person to whom the victim
complained provided that
the complainant herself gives evidence.
Section 58
and
59
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act (supra
) now govern the use of evidence
relating to previous consistent statements made by complainants in
proceedings involving sexual
offences.
[27]
S 58
provides that “Evidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings
involving the alleged commission
of a sexual offence. Provided that the court may not draw any
inference only from the absence
of such previous consistent
statement.’
[28]
S 59
provides that ‘In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference
only from the length of
any delay between the alleged commission of such offence and the
reporting thereof.’
[29] It is accordingly clear that
the proviso to
ss 58
and
59
of Act 32 of 2007 (supra) provide that a
court may not draw any inference from only the absence of previous
consistent statements
and any delay between the alleged commission of
the offence and the reporting thereof.
[30] It is further necessary to
remind ourselves that the fact that a complaint of a sexual offence
has been made does not
prove the content of the complaint, nor is it
corroboration of the complainants evidence. The SCA has clearly
stated that the
terms of the complaint made by the complainant in a
sexual offence is admissible for two purposes, namely, to show the
consistency
of the complainant’s evidence, and to a negative
consent. See S v Hammond 2004 (2) SACR at 307 para 12.
[31] It is also accepted law that
the complainant must complain voluntarily. The authorities are clear
that a complaint will
not be admissible if it is made as a result of
intimidation, suggestion or conduct towards the complainant which
negates the element
of voluntariness at the time that the complaint
is made. In S v T
1963 (1) SA 484(A)
the complainants’ mother
threatened to hit her with a stick when she refused to tell her what
the accused had done to her.
On appeal the statement forced from her
in this manner was found to be inadmissible.
[32] I now turn to deal with the
criticism levelled at the evidence of the complainants with reference
to the aforestated principles.
Considering the proviso to ss 58 and
59 of Act 32 of 2007, I am not persuaded that an adverse inference
should be drawn against
M…..’s evidence because she did
not report the rape to her father at the first opportunity she had.
There is no rule
of law that requires that she was obliged to first
report to her father or mother. In any event there was no undue
delay in her
reporting the rape, albeit to her friend, [J……].
She gave a plausible explanation as to why she did not report the
rape to her father i.e. she was concerned that he would confront the
appellant and do him harm. The fact that she reported the
rape to
[J……] the day after it occurred is neither unusual or
suspicious. [J…..] was her friend and it is
to be expected
that she would confide in her.
[33] On the evidence both [M…….]
and [J…..] had intended to tell appellants ‘wife’
what he
had done to them the day after [M……’s]
rape, but they did not have the courage to do so. There is no
further
evidence that [M……] held a grudge against the
appellant or that she had a motive to falsely implicate him.
[34] The evidence rather points to
the fact that [M……] and the appellant had maintained
good relations with each
other prior to the rape, that [M…..]
trusted the appellant and regarded him as a father figure.
Corroboration for [M…..’s]
evidence that she had been
raped is to be found in the medical evidence that there were bruises
and tears to her vagina, consistent
with forced penetration. The
criticism of [M…..’s] evidence is accordingly without
foundation.
[35] The criticism which is
levelled against [J…. d… J…..] is similarly
unfounded. It should be borne
in mind that when the appellant
touched her in the manner that he did, (which was some time before
the rape of M….), she
told him that she would tell her mother
and then at the first opportunity told her mother. The fact that her
mother did not deem
it necessary at the time to lay a criminal
complaint does not mean that the incident did not occur and or that
her version was
not truthful. If she did indeed have a grudge
against the appellant or if she wanted to falsely implicate him, she
could very
easily have said that he in fact touched her private parts
as opposed to attempting to do so. The fact that she thereafter went
back to the appellant’s house also does not mean that her
evidence is not truthful and or unreliable. It is clear that when
she did go back to the appellants house that she was never alone and
that she was guarded.
[36] It is correct that [S……]
initially denied that the appellant had done anything to her. It is
also common
cause that her mother had threatened to give her a hiding
if she did not tell the truth. It must be borne in mind that she was
nine years old at the time when the incidents relating to her
occurred. She testified that the reason why she initially denied
that
appellant had done anything to her was because she was afraid of what
he might do if she spoke out. Notwithstanding the view
expressed in
S v T (supra) it must be borne in mind that in cases of this nature
‘because of the sex taboo and the consequent
tendency to
concealment a measure of persuasion is sometimes necessary before the
story is told. Quite often the complainant would
prefer to keep
quiet, but is forced by circumstances to speak out, for e.g. if she
becomes pregnant or is injured or a sexually
transmitted disease
manifests itself etc. Circumstances such as these do not necessarily
mean that the complaint is not made voluntarily,
but because of these
circumstances the victim is sometimes questioned or threatened, in
which case the complaint may be made involuntarily’.
See Law
of Evidence, Schmidt and Rademeyer Issue 13 [July 2015] at 14. 14.
[37] I agree with the learned
authors that ‘it is perfectly conceivable that, in a delicate
situation, a mother may have
to guide her child to a certain extent,
may do so rather to reveal the truth rather than to conceal it, and
that the ensuing answers
will not necessarily be involuntary’.
See Law of Evidence (supra) at 14.15. Considering the views
expressed by the learned
authors it seems to me to be prudent, that
in dealing with matters of this nature, courts should be cautious in
not rushing into
a strict application of the approach adopted in S v
T (supra). In my view a careful examination of the facts and
circumstances
of the particular case is required before coming to the
conclusion that a statement of a victim in a rape or sexual assault
was
inadmissible because the victim was threatened to make such a
statement.
[38] Questioning the victim of a
rape or sexual assault does not necessarily mean that the complaint
was involuntary particularly
where for example, a mother questions
her child thoroughly and insists that she speaks the truth. See R v
C 1955 (4) SA (N).
Where questions were leading or intimidating the
possibility may arise that the complaint was not made voluntarily.
Each case
will however have to be judged according to its own
particular facts and circumstances. What is clear is that there is
no closed
number of factors that have to be taken into account in
making the determination whether or not a complaint was made
voluntarily
or not.
[39] In the present matter I am in
any event not persuaded that the evidence of Sureida should be
excluded, and or that it
is inadmissible on the basis that it was
coerced and or obtained by intimidation or suggestion. I am
satisfied that the answers
that she gave to her mother on being
confronted in the way that she was, does not have to be considered as
proof of her story or
of the incidents that she testified about. I
find that although her evidence was simplistic, it was clear and
absent of fantasy
and suggestion. Moreover her evidence about the
kind of games that the appellant played with her and her girlfriends
and the manner
in which appellant would go about touching them in the
course of playing these games gives credence to her evidence. Her
evidence
about the appellant’s modus operandi i.e. playing
games with the girls before engaging in his sexual conduct with them
is
substantially corroborated by the evidence of Jolene.
[40] The fact that other victims
did not come forward and or the fact that the police did not take
statements from them cannot
be held against her nor does it make her
version of what she experienced less truthful. I can find no evidence
that her version
is fabricated or that she was influenced to testify
in the way that she did. The suggestion or assertion that she
fabricated her
version to fit in with the version presented by her
friends must therefore be dismissed.
[41] I am satisfied that the trial
magistrate was alive to the fact that she was dealing with the
evidence of children, that
they were single witnesses and that their
evidence should be treated with caution. It is trite law that an
appeal court will only
be entitled to interfere with a trial courts’
evaluation of the oral testimony in exceptional cases. The trial
magistrate
was steeped in the atmosphere of the trial and had the
advantage of seeing, hearing and appraising the witnesses. On a
consideration
of the record, I cannot find any fault with the trial
magistrates’ evaluation of the evidence of the child witnesses
nor
am persuaded that the trial magistrate misdirected herself in
respect of the factual findings she made in reaching her conclusion.
See R v Dhlumayo and Another
[1948] 2 All SA 566
and S v Francis
1991
(1) SACR 198(A).
In my view the child witnesses corroborated each
other substantially and even though the child witnesses may have
contradicted
each other on particular aspects, it does not follow
that the witnesses were untruthful and or that the contradictions
should necessarily
lead to the rejection of the whole of their
evidence. See S v Oosthuizen
1982 (3) SA 571
(T) at 576.
[42] Although the appellant raised
an alibi as a defence, I am not persuaded that his defence amounts to
an alibi in the true
sense of the meaning of the word. On the facts
before us the appellant was at his house for the better part of the
day when the
rape in respect of count 1 is alleged to have occurred.
Even if it is accepted that the appellant returned home from Wynberg
at
10h00 and spent the better of the day with his adult female
companions at his house, he is unable to account for what happened,
and or what he did, between 17h 00 (i.e. when his defence witness
left), and 18h 00 when his wife allegedly arrived home. In respect
of counts 2 and 3 he did not dispute that he was at home when the
incidents occurred.
[43] His defence in respect of all
three counts essentially amounts to a denial that he committed the
offences concerned.
It is trite law that there is no obligation upon
an accused person to convince the court of his innocence where the
state bears
the onus. If his version is reasonably possibly true, he
is entitled to his acquittal even though his explanation is
improbable.
A court is further not entitled to convict unless it is
satisfied, not only that the explanation of the accused is
improbable,
but that it is also false beyond any reasonable doubt.
The appellant was unable to provide any reasonable explanation why
the
complainant’s had singled him out and or had fabricated
lies against him. I am on the whole satisfied that there is no
reasonable
possibility of conscious or unconscious fabrication of the
evidence by the complainants against the appellant. On a careful
consideration
of the evidence of the complainants, I am satisfied
that they were indeed satisfactory, reliable and truthful witnesses
and that
the overwhelming weight of their evidence establishes the
guilt of the appellant beyond a reasonable doubt. The appellant’s
version was accordingly correctly dismissed as untruthful and false
by the trial magistrate. The appeal against the conviction
must
therefore fail.
[44] I now turn to deal with the
appeal against sentence.
[45] It is trite law that an
appeal court will generally only interfere with the sentence imposed
if the court a quo committed
an irregularity or misdirected itself in
imposing the sentence or has imposed a sentence which is shockingly
inappropriate or
completely out of proportion to the magnitude of the
offence.
[46] The prescribed minimum
sentence of life imprisonment applies in respect of count one as the
victim is a girl under the
age of sixteen (16) years old.
[47] In her judgment on sentence,
the trial magistrate found that no substantial and compelling
circumstances existed which
justified the imposition of a lesser
sentence than the minimum prescribed sentence.
[48] It was contended on behalf of
the appellant that the trial court misdirected itself by not
exercising its discretion with
regard to sentence in a fair and just
manner and that it had failed to take into account that, appellant
was forty-three years
old at the time of the offences; he was
gainfully employed prior to his arrest; he was a first offender; he
had three minor children
that he supported and that he had been in
custody for one year and six months prior to sentence being imposed.
It was further
contended that even though the facts referred to above
do not individually constitute substantial and compelling
circumstances,
that if they were assessed cumulatively, that they do
amount to such. Mr Burke who appeared on behalf of the respondent
was of
the view that the life sentence was appropriate in the
circumstances of the case.
[49] In S v Malgas
2001 (1) SACR
469
(SCA) the court held at para 25 that the prescribed sentence may
be departed from ‘If the sentencing court on consideration
of
the circumstances of the particular case is satisfied that they
render the prescribed sentence unjust in that it would be
disproportionate
to the crime, the criminal and the needs of society
so that an injustice would be done by imposing that sentence, it is
entitled
to impose a lesser sentence.’ In S v Vilakazi
2009
(1) SACR 552
at 562 b – c Nugent JA stated that ‘whether
the prescribed sentence is indeed proportionate, and thus capable of
being
imposed, is a matter to be determined upon a consideration of
the circumstances of the particular case. It ought to be apparent
that when the matter is approached in that way, it might turn out
that the prescribed sentence is seldom imposed in cases that
fall
within the specified category. If that occurs it will be because the
prescribed sentence is seldom proportionate to the offence’.
[50] There can be no doubt that
rape is a repulsive crime. In S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) it
was appropriately referred to as ‘a humiliating, degrading and
brutal invasion of privacy, the dignity and the person
of the
victim.’ In S v SMM
2013 (2) SACR 292
at 297, para [14]
Majiedt JA stated correctly that ‘our country is plainly facing
a crisis of epidemic proportions in respect
of rape of particularly
young children. The rape statistics induce a sense of shock and
disbelief. The concomitant violence in
many rape incidents engenders
resentment, anger and outrage … The public is rightly outraged
by this rampant scourge. There
is consequently increasing pressure
on our courts to impose harsher sentences primarily, as far as the
public is concerned to exact
retribution, and to deter further
criminal conduct.’
[51] The trial magistrate
correctly regarded as aggravating the fact that the appellant allowed
the complainant’s into
his house, that they trusted him,
regarded him as a father figure, and that he abused this position of
trust and the trust that
the children’s parents and the
community had in him. I agree with the view that the unquestionable
emotional harm that rape
does may vary in gravity, but it generally
deserves more emphasis than physical injuries. I have no doubt that
the rape had an
extremely negative effect on Musa and her family.
The other two complainants were also not left unscathed.
[52] It is however regrettable
that the state did not present (nor did the trial court request),
expert evidence about the
emotional and psychological harm that the
respective victims suffered. Considering that count 1 attracted a
life sentence, the
matter called out for what was described by Nugent
JA in S v Vilakazi (supra) as ‘… thoughtful preparation,
patient
and sensitive presentation of all the available evidence, and
meticulous attention to detail’, in respect of the impact of
the rape on particularly the complainant on count 1. The so-called
victim impact reports which were handed in during the sentencing
stage falls way short of the kind of evidence that is required to be
placed before the court to enable the court to make a proper
assessment of the emotional and psychological harm that victims
suffer in cases of this nature for the purpose of deciding on an
appropriate sentence. Suffices to say that prosecutors should take
greater care in the presentation of this kind of evidence to
a court
at the sentencing stage.
[53] Our courts have however
repeatedly held that society demands that persons who make themselves
guilty of offences of this
nature must be severely dealt with. In
cases such as this, the element of retribution and deterrence rather
that the interest
of the criminal himself comes to the fore when it
comes to the assessment of what would be a suitable sentence. At the
same time
it must be emphasised that we should not lose sight of the
fact that life imprisonment is the most severe sentence which a court
can impose and that the question whether it is an appropriate
sentence, particularly in respect of its proportionality to the
particular circumstances of a case, requires careful consideration.
In the present matter the trial magistrate failed to give proper
consideration to the approach adopted by our courts in similar cases
such as S v Abrahams
2002 (1) SACR 116
(SCA), S v Mahomotsa
2002 (2)
SACR 435
(SCA), S v Nkomo
2007 (2) SACR 198
(SCA), S v GN
2010 (1)
SACR 93
[TPD] and S v SMM
2013 (2) SACR 292
(SCA), which hold the
view that the life sentence ordained by the legislature should be
reserved for cases devoid of substantial
factors compelling the
conclusion that such a sentence is inappropriate and unjust.
[54] In S v Abrahams (supra) the
appellant was convicted of raping his fourteen (14) year old daughter
and was sentenced in
the High Court to seven years imprisonment. On
appeal by the state against sentence the SCA increased the sentence
to twelve (12)
years imprisonment. The court held that the life
sentence ordained by the Legislature should be reserved for cases
devoid of substantial
and compelling factors and that it should only
be imposed as a minimum sentence in the most serious cases. In S v
Mahomotsa (supra)
the complainant was fifteen (15) years old and the
accused was convicted of two counts of rape in relation to her. On
appeal the
minimum life sentence imposed by the court a quo was
substituted with a sentence of eight (8) and twelve (12) years
imprisonment
on the respective counts. In S v Nkomo (supra) the
accused was convicted of abduction and rape. The accused was
sentenced to
three (3) years imprisonment for the abduction but
referred to the High Court for sentence since he had raped the
complainant five
(5) times and the prescribed sentence was life
imprisonment. The sentence of life imprisonment imposed by the High
Court was set
aside on appeal and substituted with a sentence of
sixteen (16) years imprisonment. In S v GN (supra) the appellant was
convicted
in the regional court of raping his biological daughter of
five (5) years old. He was referred to the High Court for sentence.
The High Court confirmed the conviction, found no substantial and
compelling circumstances and sentences the appellant to life
imprisonment. The life sentence imposed on him was set aside on
appeal and the appellant was sentenced to twenty (20) years
imprisonment.
In S v SMM (supra) the appellant was convicted of the
rape of his thirteen (13) year old niece who was sent to him so that
he
could help her with her school admission application form. He was
sentenced to life imprisonment by the court a quo. On appeal
to the
SCA the sentence of life imprisonment was set aside and replaced with
a sentence of fifteen (15) years imprisonment. The
approach and its
application in S v Mahomotsa (supra) and the other cases referred to
above conveys that even where imprisonment
for life is prescribed as
a minimum sentence that a court must bear in mind that it is the
ultimate penalty that the courts in
this country can impose. As such
it must not be imposed lightly, even when it is a prescribed minimum
sentence. In order for
it to arrive at a just sentence, a court must
have balanced regard to the nature and seriousness of the crime, the
personal circumstances
of the accused and the legitimate interests of
society. The result thereof is that justice demands that, even for
similar crimes,
different sentences must often be imposed. In S v
Malgas (supra) at para 25 it was pointed out that s 51 of the Act
‘has
limited but not eliminated the courts’ discretion in
imposing sentence …’ It follows that, even where the
Act
prescribes a minimum sentence, the courts must still seek to
differentiate between sentences in accordance with the dictates of
justice. Thus, where the Act prescribes imprisonment for life as a
minimum sentence, the fact that it is the ultimate sentence
must also
be taken into account. In the present case the magistrate did not in
her judgment on sentence give consideration to
the approach adopted
by our courts in the cases referred to hereinbefore, nor did she
compare the approach adopted in these cases
with the circumstances of
the present case. The impression that I have is that the trial
magistrate had decided to impose the
prescribed sentence of life
imprisonment as a matter of course unless the personal circumstances
of the appellant disclosed it
to be exceptional. Such an approach is
not permitted. In my view the approach adopted by the trial
magistrate amounts to a misdirection,
the nature and degree which is
sufficient to enable this court to interfere and reconsider sentence.
[55] Even though the rape
committed by the appellant on count 1 is very serious and can never
be condoned, it does not in my
view qualify as falling in the
category of one of the worst cases of rape. In my view the trial
magistrate also failed and neglected
to take into account the
cumulative effect of the appellants favourable personal
circumstances. He was forty-three (43) years
old. Although married,
he was separated from his wife since February 2010. He has three (3)
children, respectively aged seventeen
(17), twelve (12) and seven (7)
years old from his marriage. At the time of the incidents he had a
stable relationship and lived
with a woman who had one child. He was
employed and was a first offender. At the time of sentence he had
been in custody for
eighteen (18) months. Having regard to the
cumulative effect of all these factors, I am of the view that
substantial and compelling
circumstances do indeed exist which allows
for a deviation from the prescribed sentence of life imprisonment in
respect of count
1.
[56] It is accepted law that where a
court has to impose a sentence for multiple offences as in the
present matter, the court has
to seek an appropriate sentence for all
the offences taken together. When dealing with multiple offences,
courts must therefore
bear in mind that the aggregate sentence
imposed must not be unduly severe. The trial magistrate gave no
reasons why she ordered
that counts 2 and 3 should be taken together
with count 1 for the purpose of sentence. Although this is a case
where the incidents
are closely connected in time, place and
circumstances this is not necessarily an appropriate case for them to
be taken together
for the purpose of sentence and treated as one
since they are subject to their own statutory sentencing structure
and such an approach
would arguably limit the court to the sentence
already imposed on count 1. In my view the correct approach would be
to impose
separate sentences in respect of counts 2 and 3 and rather
to order that they run concurrently with the sentence on count 1.
[57] Having said that, the crimes
remain very serious and must be severely punished. Taking into
account all the factors relevant
to sentence, I am satisfied that a
term of fifteen (15) years imprisonment on count 1 and terms of two
(2) years and three (3)
years imprisonment, respectively on counts 2
and 3, is a more reasonable balanced and justifiable sentence in this
matter.
[58] In the result I propose the
following order:
1. The appeal against conviction is
dismissed.
2. The appeal against the sentence
succeeds.
3. The sentence of life imprisonment in
respect of counts 1 to 3 is set aside and replaced with the
following:
3.1 Count 1 - fifteen (15) years
imprisonment.
3.2 Count 2 - two (2) years
imprisonment.
3.3 Count 3 - three (3) years
imprisonment.
3.4 It is ordered that the sentences
imposed on count 2 and 3 will run concurrently with the sentence of
fifteen (15) years imprisonment
imposed on count 1.
4. The new effective sentence of
fifteen (15) years imprisonment is antedated to the date upon which
sentence was originally imposed
by the trial court, i.e. 18 February
2015.
RILEY, AJ
I agree and it is so ordered.
YEKISO, J