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[2017] ZAWCHC 163
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L.B v S (A356/2017) [2017] ZAWCHC 163 (8 June 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Coram: Meer J et
Andrews AJ
[REPORTABLE]
Case
no. A356/2017
In
the matter between:
L
B
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 08 JUNE 2017
Andrews
AJ,
[1]
The Appellant was arraigned in the Parow Regional Court on one count
of contravening the provisions of Section 5(1) (sexual
assault), as
well as one count of contravening the provisions of
Section 3
(rape),
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
. On 2 December 2015 the Appellant was convicted on
both charges and on 16 March 2016 was sentenced to life imprisonment;
the two
counts having been taken together for the purposes of
sentencing. The Appellant, who has an automatic right of appeal as a
result
of the life sentence imposed by the court
a quo
appeals
against both his conviction and sentence.
[2]
The Appellant was alleged to have performed sexual acts with his 17
year old daughter spanning over the period August 2013 to
about May
2014. The Appellant, who was legally represented, pleaded not
guilty to the charges proffered against him and offered
a plea
explanation in terms of
section 115
of the
Criminal Procedure Act 51
of 1977
. Two witnesses testified for the state, namely the
complainant, LJ (identity not disclosed as complainant was under the
age of
18 years at the time of the commission of the offences), and
Ms S J, her grandmother. The J88 was handed into evidence by
agreement.
The Appellant and Mr I Koeberg testified for the defence.
The salient features of the
viva voce
evidence lead in this
matter are set out below.
[3]
LJ
testified that she was essentially raised by her paternal
aunt and uncle. She narrated that her relationship with her father
was
good. LJ articulated that she had made a pledge to the Appellant
to remain pure until she reached the age of 21 years. The Appellant
who had read the complainant’s diary made the discovery that LJ
had a boyfriend and was engaging in sexual activity. LJ testified
that the Appellant, who was infuriated, confronted her to establish
the veracity of what he had uncovered. The confession
by the
complainant confirming same upset the Appellant. He informed LJ that
he would decide what he would do about it. After
a lapse of
about a few weeks the Appellant informed LJ that he wanted to check
whether she really had sex. This request shocked
LJ and rendered her
unsure about what to do. The Appellant proceeded to instruct her to
pull down her pants so that he could check
whether she was still a
virgin, which command she obeyed as the Appellant threatened to beat
her if she defied him.
[4]
On the next occasion, the Appellant threated to inform LJ’s
aunt and uncle if she did not have sex with him. The
complainant described that the Appellant instructed her to lie on the
bed where he proceeded to fondle her breast and vagina.
Notwithstanding LJ’s protestations the Appellant forced himself
onto her and proceeded to engage in sexual acts and have sexual
intercourse with the complainant who was crying at that stage.
Thereafter, these encounters were perpetuated by the Appellant on
a
regular basis until the complainant eventually reported the ordeal to
her grandmother.
[5]
Ms S J,
the grandmother of the complainant, testified that she
took LJ home one Sunday during 2014, after she had spent the weekend
with
her. As Ms Jonkers was about to leave, LJ asked her not to go.
Ms S J narrated that she observed her teary eyed granddaughter which
prompted her to ask what was troubling her. LJ informed her that it
concerned the Appellant. Ms S J enquired whether the Appellant
was
touching her, which LJ confirmed. Ms S J thereafter proceeded to
report the matter to LJ’s aunt and uncle which culminated
in a
family meeting and the ultimate institution of criminal charges.
[6]
LB
, the Appellant, testified that he and the complainant
shared a father daughter relationship which later progressed into a
consensual
sexual relationship between them. He narrated that this
relationship subsisted from about August 2013 to April 2014. The
Appellant
described this relationship to be an intimate love
relationship as a couple and was kept secret from the rest of the
family.
According to the Appellant, they stopped having sexual
intercourse and ceased being in a relationship after the complainant
informed
him that she had a boyfriend.
[7]
Mr I K
testified that LJ lived with him and his wife, the
Appellant’s sister, since she was about 9 years old. They had a
good relationship
with each other. He articulated that he was
surprised to encounter Ms S J at his home one Monday afternoon. Mr K
narrated that
Ms Jonker’s expressed her suspicion that the
Appellant was molesting LJ. Mr K articulated that he and his
wife confronted
the complainant who at first denied the averments. Ms
K stated that he at no stage suspected that anything untoward was
happening
between the complainant and the Appellant.
[8]
Dr Molefe examined the complainant on 8 July 2014 and compiled a J88.
As the complainant was sexually active the findings thereon
could not
corroborate the state’s case.
[9]
The Appellant’s grounds of appeal on conviction can be
succinctly distilled as follows:
(a) Appellant contended
that the court
a quo
erred by finding that the state had
discharged the
onus
and proven its case beyond reasonable
doubt; and
(b) That the court
a
quo
erred in finding that the intercourse was not consensual.
[10]
To this end, the Respondent contended
that a proper case for interfering with the decision of the court
a
quo
had not been made out.
[11]
It
is an established legal principle that the trial court’s
evaluation of the evidence and acceptance thereof is presumed,
in the
absence of material misdirections, to be correct and as such, an
appeal court will not lightly interfere with the factual
findings of
the trial court, in particular where these are based on credibility
findings. It needs to be born in mind that the
trial court has a
significant advantage in assessing and evaluating the evidence of
witnesses, having had the opportunity to see
such witnesses in person
and being able to observe their demeanour. It is also under such
circumstances assumed that the trial
court’s findings of fact
are correct. The court of appeal does not have the power to interfere
with such findings unless
there are demonstrable and material
misdirections by the trial court which renders such findings to be
clearly wrong. See
S
v Hadebe and Others,
[1]
S v
Monjane and Others
[2]
,
S v
Francis,
[3]
S v
Bailey,
[4]
and
R
v Dhlumayo and Another
[5]
in
this regard.
[12]
In a well-reasoned judgment, the court
a quo
examined the
totality of the evidence. The Magistrate was cognisant of the trite
legal principals pertaining to the evidence of
a single witness. The
Magistrate, after considering the minor discrepancy in relation to
whom LJ made the first report, found the
contradiction not to be
material. Furthermore, the Magistrate found that the complainant gave
a logical and chronological exposition
of events. Additionally, the
Magistrate found that there was sufficient corroboration in the
testimony of Ms S J. Moreover, the
Magistrate found that
corroboration was to be found in the accused’s version. In this
regard, sexual encounters were not
denied by the Appellant. Where and
when these sexual encounters occurred was also not disputed. It was
also not disputed that the
sexual encounters were kept hidden from
the family.
[13]
In relation to the evidence of the Appellant, the Magistrate found
that there were major contradictions between the evidence
of the
Appellant and that of Mr K. She found that Mr K tried to protect the
Appellant. The Magistrate found the version of the
Appellant to be
improbable, and rejected it to be false beyond reasonable doubt.
[14]
On a
conspectus of the evidence, I am unable to fault either the reasoning
or the findings of the Court
a
quo
.
Despite the minor discrepancy as to who the first report witness
actually is, I am satisfied that LJ’s evidence was satisfactory
in every material respect as was articulate in
S
v Olawale
[6]
.
In this regard, I am in agreement with the Magistrate that there was
sufficient corroboration for LJ’s version through the
evidence
of Ms S J. In
S
v Mahlangu
and Another
[7]
the
Court held, in relation to a single witness, that corroboration can
also be found ‘
in
the improbability of the appellant’s version’
[8]
.
I am satisfied that the Magistrate’s finding in this regard
cannot be faulted. It is furthermore common cause that the
complainant was sexually active prior to the Appellant having sexual
intercourse with her and therefore medical evidence would not
have
assisted the state’s case in this regards.
[9]
[15]
The Appellant’s version, that the sexual encounters were
consensual, is in my view not plausible. There are inherent
and
fundamental problems with this scenario as the Appellant is the
complainant’s father, who at the time of the commission
of
these offences was 39 years old. The Appellant wishes the court to
believe that he and his daughter were in a relationship.
The
Appellant’s version is interlaced with a myriad of
improbabilities. In this regard, it appears to be improbable that
he
was the one who taught the complainant to kiss when it is common
cause that the complainant had a boyfriend and was sexually
active.
Furthermore, the manner in which and timing of this so-called
relationship appear to be questionable as it coincidentally
dovetails
with when the Appellant made the discovery in LJ’s diary.
[16]
On the complainant’s version, the Appellant used the
information he discovered as leverage to illicit sex from her. LJ
was
no doubt fearful or embarrassed that her aunt and uncle would find
out about her escapades as they were strict and would not
have
allowed her to engage in that type of behaviour.
[17]
From the evidence presented, it is pellucid that the Appellant knew
that he was doing something wrong and consequently instilled
fear
into the complainant in order to keep what he was doing a secret. It
is unfathomable that the sexual encounters were consensual.
The
Appellant tried to romanticise this sordid relationship. The
complainant however explicitly stated that her resistance was
met
with intimidation, threats and violence. The mere fact that she later
submitted to him is not indicative of consent.
[18]
In
S
v B
[10]
it
was held that ‘
[e]xplicit
opposition to intercourse need not be established. In addition, mere
acquiescence could not be equated with consent in
cases where a
complainant did not resist in an observable manner due to fear or
intimidation’.
[19]
The complainant’s consternation is unequivocally encapsulated
when she articulated the following: ‘…
Watter pa doen
dit aan sy dogter?…’
In the circumstances, I am
satisfied that the Magistrate correctly found that that the sexual
encounters were not consensual. Moreover,
I am persuaded that the
Magistrate correctly rejected the Appellant’s version as not
being reasonably possibly true. I am
satisfied that the state has
proven its case against the Appellant beyond reasonable doubt. This
being so, the appeal on conviction
stands to be dismissed.
[20]
The Appellant’s grounds of appeal on sentence can be
crystallised as follows:
(a) That the sentence of
life imprisonment was disproportionate and had the effect of
destroying rather than rehabilitating and
improving the Appellant for
his future reintegration into society;
(b) That the court
a
quo
over emphasised the seriousness of the offence as the expense
of the Appellant;
(c) That the court
a
quo
erred in finding that no substantial and compelling
circumstances existed justifying a deviation from life imprisonment.
[21]
The Respondent submitted that the aggravating circumstances and
interest of the community in this matter far outweigh the mitigating
factors of the Appellant. It was further contended by the Respondent
that the court
a quo
correctly found that there were no
substantial and compelling circumstances present to deviate from the
prescribed minimum sentence.
The Respondent submitted that there was
no misdirection on the part of the sentencing court and that all of
the aspects referred
to by the Appellant as his grounds of appeal
were considered when the sentence was imposed.
[22]
It is trite
that sentencing is within the discretion of the trial court and that
a court of appeal will not lightly interfere with
the sentence
imposed. The powers of the court of appeal are relatively limited to
those instances where the sentence is vitiated
by irregularity or
misdirection or where there is a striking disparity between the
sentence passed and that which this court would
have imposed.
[11]
This court on appeal cannot simply
juxtapose
its views and opinions on sentence and then conclude that the
sentence of the court
a
quo
is
inappropriate if it differs from what this court would have done. It
is only when the trial court has exercised its discretion
in an
improper manner or misdirected itself that interference will be
warranted.
[12]
[23]
The court
a quo
considered the traditional factors of the
triad, such as the Appellant’s personal circumstance, the
nature and seriousness
of the offences, the interest of the
community; the impact the offences has had and continues to have on
the victim as well as
the legal principles applicable to the minimum
sentencing regime.
[24]
Prior to the enactment of the prescribed minimum sentences,
sentencing primarily and exclusively fell within the discretion of
the
Courts. The courts having due regard to the triad (the crime, the
interests of society and the circumstances of an accused person)
were
free to impose whatever sentences they deemed just and fair as per
the common law. This position has however changed, to the
extent,
that whenever an accused, is charged with one of the listed offences
in the Schedules, the starting point now is
Section 51
of the
Criminal Law Amendment Act 105 of 1997
.
[25]
If regard is had to the purpose for which the
Criminal Law Amendment
Act was
enacted, it should serve as an indicator of how serious
offences are viewed and regulated in South Africa today.
Consequently,
sentences imposed by the courts must surely dispel any
notion of uncertainty in this regard.
[26]
Section 51(3)
of the Act, confers a limited discretion upon the
courts to depart from the prescribed minimum sentences, as it creates
two preconditions
namely:
(a) It must determine if
substantial and compelling circumstances are present that justifies a
departure from the prescribed sentence.
(b) The substantial and
compelling circumstance(s) is to be placed on record.
[27]
In the
absence of these two preconditions, courts are obliged, to impose the
prescribed minimum sentences, and may nevertheless,
despite such
circumstances, still impose the prescribed sentence.
[13]
When imposing the prescribed sentences, courts are bound to focus
more on the retributive and deterrent purposes of sentence,
than the
rehabilitation and reformation of the offender.
[14]
The result may be that despite the favourable circumstances of the
accused, a court may, after having regard to the interests of
society, and the nature of the offence, still decide to impose a
heavier sentence than the prescribed one.
[28]
The court
a quo
was apprised of the personal circumstances of
the Appellant, which included
inter alia
that he was 38 years
old at the time of the commission of the offences, divorced, and the
father of three children. The Appellant’s
highest level of
education is standard 8. At the time of sentence the Appellant was in
custody awaiting trial for a period of approximately
two years. Prior
to his incarceration, the Appellant was employed as a construction
worker. Additionally, the Appellant has previous
convictions for
theft and assault.
[29]
The
Constitution of the Republic of South Africa and many major
international instruments to which South Africa is a signatory State
regard the rights of women and children very highly. Society
considers rape to be a very serious problem, especially as it is a
prevalent offence and one in respect of which an apposite measure of
retribution is called for. This is so because it constitutes
‘
a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim’
.
[15]
[30]
The above
sentiments were echoed in
Director
of Public Prosecutions, Western Cape v Pins
[16]
where
it was stated that:
‘
No judicial
officer sitting in South Africa today is unaware of the extent of
sexual violence in this country and the way in which
it deprives so
many women and children of their right to dignity and bodily
integrity and, in the case of children, the right to
be children; to
grow up in innocence and, as they grow older, to awaken to the
maturity and joy of full humanity. The rights to
dignity and bodily
integrity are fundamental to our humanity and should be respected for
that reason alone. It is a sad reflection
on our world, and societies
such as our own, that women and children have been abused and that
such abuse continues, so that their
rights require legal protection
by way of international conventions and domestic laws, as South
Africa had done in various provisions
of our Constitution and in the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
…’
[17]
[31]
T
he
law reports are replete with a plethora of case law pertaining to the
manner in which the courts have approached incestuous rape.
In
the matter of
Director
of Public Prosecutions, North Gauteng v Thabethe
,
[18]
the Supreme Court of Appeal’s reasons for interfering with the
trial judge’s sentence was ‘
the
emergence of a trend of rapes involving young children which is
becoming endemic
’.
In
S
v PB,
[19]
Bosielo JA, writing for a full bench, noted that ‘
rape
of young girls by their fathers ... has become prevalent’
.
This was one of the ‘
seriously
aggravating circumstances’
that
was taken into account in confirming the absence of substantial and
compelling circumstances.
[20]
[32]
In
MF
v S
,
[21]
the appellant was convicted of the rape of his daughter who was under
the age of 16 at the time and thus was sentenced to life
imprisonment. The Full Bench dismissed the appeal against the life
sentences, quoting the trial court at para 12:
‘
These two
offences carry a minimum sentence of life imprisonment unless I find
substantial and compelling circumstances to exist.
I am of the view
that I am unable to find any such circumstances. The accused has
shown no remorse and continues to deny his guilt.
He has suffered a
life of poverty and he suffered at the hands of his father and is
still angry at his fattier, but one can make
no connection between
this anger and the systematic rape of his daughter. These rapes were
sheer sexual exploitation of the grossest
kind.
The gravity of these
offences, the length of time over which they endured, the breach of
trust and the damage to his daughter far
outweigh any mitigating
features in his personal circumstances. These rapes are in my view of
the kind for which life imprisonment
is appropriate.’
[33]
In
MD
v S
,
[22]
the Appellant was convicted of multiple counts of rape of his 16 year
old daughter. He was sentenced to life imprisonment as per
the
Criminal Law Amendment Act. The
primary question was whether he had
been sufficiently warned in his charge sheet. The Court found that he
had been and dismissed
the appeal against the conviction and
sentence. The Court made the following remarks concerning the crime
of incestuous rape:
‘
[14] A sentence
must be tailored to the seriousness of the crime committed and one
expressing the natural indignation of ordinary
citizens would
compensate for the seriousness of the crime committed. An appropriate
punishment is one which serves to protect
not only appellant's female
members of the family but other similarly vulnerable members of
society…
[15] Rape committed by
close male relatives against victims related to them is prevalent.
See, for an example, cases such as S v
Sikhipha
[2006] ZASCA 73
;
2006 (2) SACR 439
(SCA) [also reported at
[2006] JOL 17530
(SCA) Ed]
; S v Abrahams
2002 (1) SACR 116
(SCA); and S v PB
2013 (2)
SACR 533
(SCA). Courts are under a duty to punish such that this new
tendency is contained. It is despicable behaviour that fathers
totally
turn their backs on what is their natural duty to ensure the
safety of their daughters, and themselves pose a danger towards their
own vulnerable children. Dealing with a similar incident in S v
Abrahams, Cameron JA stated the following:
"Of
all grievous violations of the family bond the case manifests, this
is the most complex, since a parent, including a father,
is indeed in
a position of authority and command over a daughter. But it is a
position to be exercised with reverence, in a daughter's
best
interest, and for her flowering as a human being. For a father to
abuse that position to obtain forced sexual access to his
daughter's
body constitutes a deflowering in the most grievous and brutal
sense."
"Second, rape
within the family has its own peculiarly reprehensible features, none
of which subordinate it in the scale of
abhorrence of other crimes."
On
the effect of incestuous rape the Judge made the following important
observation:
"Third and
lastly, the fact that family rape generally also involves incest (I
exclude foster and stepparents, and rapists
further removed in family
lineage from their victims) grievously complicates its damaging
effects. At common law incest is still
a crime. Deep social and
religious inhibitions surround it and stigma attends it. What is
grievious about incestuous rape is that
it exploits and perverts the
very bonds of love and trust that the family relation is meant to
nurture."
[23]
[34]
Evident is the fact that the Appellant showed no remorse for what he
did. If regard is to be had to the totality of the evidence
I am of
the view that the Appellant intentionally abused his position of
power and authority over the complainant, who was a vulnerable
child
by manipulating her. Instead of protecting LJ, the Appellant
violated the sanctity of his own daughter which actions
carry with it
far reaching consequences and irreparable harm. LJ will for the rest
of her life have to face the stigmatization,
psychological, and
emotional wounds associated with what her father had done to her. LJ
will have to learn to overcome her fears
and trust again. Just
because there were no visible physical injuries does not make the
offence less serious and as such, does
not of necessity translate
into a lesser punishment. LJ will carry these invisible scars for the
rest of her natural life.
[35]
I am
satisfied that the Magistrate had due regard to all the relevant
factors and adequately dealt with all the grounds of appeal
in her
sentence judgment. I am furthermore satisfied that the court
a
quo
correctly considered the guidelines set out in
Malgas
(supra)
and other authorities concerning the departure of prescribed minimum
sentences and correctly found that there were no substantial
and
compelling circumstances to deviate from the minimum sentence. I find
that the Magistrate did not misdirect herself.
I therefore find
that the sentence of life imprisonment imposed does not induce a
sense of shock, having regard to the factual
circumstances of this
matter; and is in keeping with what has been held
S
v C
[24]
that ‘
[r]ape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim –
he murders
herself respect and destroys her feeling of physical and mental
integrity and security…. Society demands protection
in the
form of heavy and deterrent sentences from the courts against such
atrocious crimes.’
Child rape is a scourge that shames the nation and should in no way
be tolerated. In the circumstances, there is no need to interfere
with the sentence.
Order
[36]
In the result, I would dismiss the appeal. The conviction and
sentence are confirmed.
____________________
ANDREWS, AJ
I agree and it is so
ordered.
____________________
MEER, J
[1]
1998
(1) SACR 422 (SCA)
[2]
2008
(1) SACR 543 (SCA).
[3]
1991
(1) SACR 198
(A) at 204C–E.
[4]
2007
(2) SACR 1
(C).
[5]
1948 (2) SA 677 (A).
[6]
[2010] 1 ALL SA 451
(SCA) at page 452: ‘…
the
Court pointed out that the evidence of a single witness has to be
clear and satisfactory in very material respect. The evidence
has to
be treated with caution. A court can accept the evidence of a single
witness if it is satisfied that it is truthful beyond
reasonable
doubt.’
[7]
2011
(2) SACR 164
SCA.
[8]
At 171 para 22d.
[9]
See
Monageng
v The State
[2008] ZASCA 129
at para 25 where Maya JA stated as follows:
‘
It
was argued that the complainant’s version was not supported by
the medical evidence and that absence of physical injuries
was a
further indication that there had been no rape. I find no merit in
this contention. It needs first to be pointed out that
physical
injuries are not always a consequence of rape. This is because
physical force is not necessarily used in rape…
Despite its
neutrality, the doctor’s evidence did not exclude the
possibility of rape in view of the time lapse and the
fact that the
complainant had since washed…’
[10]
1996
(2) SACR 543 (C).
[11]
Grobler
v S
2015
(2) SACR 210
(SCA) at para 5.
[12]
S
v Rabie
1975 (4) SA 855
(A). See also
S
v Pieters
1987 (3) SA 717 (A).
[13]
S v
Mthembu
2012 (1) SACR 517
(SCA) at para 11.
[14]
See
S
v Swart
2004 (2) SACR 370
(SCA) at paras 12 and 14 and
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others
2009
(2) SACR 361
(SCA) at para 22.
[15]
In
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at paragraph 344J
,
it was stated, correctly in my view, that rape is a serious offence,
‘
constituting
as it does a humiliating, degrading and brutal invasion of the
privacy, the dignity and the person of the victim.
’
[16]
2012
(2) SACR 183
(SCA) at 186F-H.
[17]
See
also
S
v Nkunkuma & Others
[2013]
ZASCA 122.
[18]
2011
(2) SACR 567
(SCA) at para 17 and 22.
[19]
2013
(2) SACR 533
(SCA) at para 13.
[20]
Ibid
at para 24. See also Du Toit
et
al
,
Commentary
on the
Criminal Procedure Act
,
Volume 2 (Juta) [Service 54. 2015], 28-10B-12B.
[21]
[2017]
JOL 38542 (ECG).
[22]
[2016]
JOL 36667 (SCA).
[23]
See also in this regard
Kwinda
v The State
2014 JDR 2013 (SCA) and
S
v MDT
2014 (2) SACR 630 (SCA).
[24]
1996
(2) SACR 181
at 186E-F.