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Konstabel v S (A111/2020) [2020] ZAWCHC 75 (11 August 2020)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Sexual Offences — Conviction for repeated rape of minor — Appellant convicted of multiple counts of sexual assault against his partner's 8-year-old daughter — Sentenced to life imprisonment under minimum sentencing legislation — Appellant appealed against conviction and sentence, arguing insufficient evidence and improper assessment of personal circumstances. The appellant, Cedric Konstabel, was convicted of repeatedly raping and sexually abusing his partner's 8-year-old daughter over a two-year period. The regional magistrate sentenced him to life imprisonment, finding no substantial and compelling circumstances to deviate from the minimum sentence. The appellant appealed, contending that the State failed to prove its case beyond a reasonable doubt and that the magistrate erred in assessing the evidence and his personal circumstances. The court upheld the conviction, finding that the regional magistrate conducted a thorough evaluation of the evidence, including the consistent testimony of the complainant and corroborating witnesses. The appeal was dismissed, confirming the conviction and sentence as justified given the gravity of the offences and the appellant's breach of trust.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an automatic appeal to the High Court (Western Cape Division, Cape Town) against both conviction and sentence, arising from the imposition of a sentence of life imprisonment in the regional court at Oudtshoorn.


The appellant was Cedric Konstabel, who had been convicted in the regional court. The respondent was the State.


The procedural history was that the appellant was tried in the regional court on two counts of sexual offences involving a minor child. After conviction on both counts, and upon application of the prescribed minimum sentence regime (as described in the judgment), the regional magistrate imposed life imprisonment, having found no substantial and compelling circumstances justifying a deviation. The appeal proceeded by virtue of the automatic right of appeal associated with a life sentence.


The dispute concerned allegations of repeated rape and sexual abuse of a young child over an extended period, and the appeal focused on whether the State had proved guilt beyond reasonable doubt, as well as whether the sentence had been properly individualised or whether a departure from the prescribed sentence should have occurred.


2. Material Facts


It was common cause that the complainant was a minor child and the daughter of the appellant’s partner, with whom the appellant lived. The complainant and her younger sister resided with their mother and the appellant. The complainant’s age and identity were admitted, and the complainant testified with the assistance of an intermediary under the Criminal Procedure Act.


The State’s case, accepted by the trial court and endorsed on appeal, was that during 2018 (and described as occurring repeatedly over a period approximating two years), the appellant committed repeated acts of sexual penetration against the complainant. The complainant’s evidence was that, when her mother was at work and the appellant was caring for her after school, the appellant placed her on a bed, removed her underwear, undressed, and penetrated her vagina with his penis, causing pain and fear. She further alleged that on occasions he forced his penis into her mouth and compelled her to suck it.


The complainant’s report of the abuse was described as having first been made to her mother (including an allegation that her mother used a cellphone light to inspect her genital area but did not take protective action), and later to her aunt, Ms J, who reported it to the police. The complainant was subsequently examined medically. Dr Herman Kruger testified regarding genital findings recorded on the J88 form completed by another doctor, describing healed injuries and changes in the genital area, including an absence of an intact hymen and features consistent, in his opinion, with prior penetrative injury rather than recent trauma.


The appellant’s version was a blanket denial of any sexual assault. He asserted that the complainant was inclined to fabricate stories and suggested alternative sources for possible genital injury, including an incident involving another child, and allegations that other boys had played with the complainant’s private parts. The complainant emphatically denied those broader claims of fabrication and alternative perpetrators.


The complainant’s mother, called for the defence, denied that the complainant had ever reported abuse by the appellant to her and denied having examined the complainant’s genital area with a cellphone light. She nonetheless confirmed the existence of a close and protective relationship between the appellant and the complainant, including that the appellant would intervene when the mother chastised the child.


In evaluating the record, the appeal court treated the trial court’s findings that the complainant’s evidence was consistent and supported by the aunt and medical evidence as material, and it treated the mother’s evidence as notably unimpressive and protective of the appellant.


3. Legal Issues


The central issues on appeal were whether the trial court had erred in concluding that the State proved the appellant’s guilt beyond reasonable doubt on both counts, and whether the trial court had erred in rejecting the appellant’s version as not reasonably possibly true.


This was primarily a dispute about the evaluation of evidence and factual findings, including credibility and reliability assessments, as well as the application of legal standards governing the assessment of a young complainant who was effectively a single witness on the acts, and the extent to which corroboration existed.


On sentence, the issues were whether the regional court misdirected itself by failing to give adequate weight to the appellant’s personal circumstances, by failing to individualise sentence, or by over-emphasising the interests of society, and whether substantial and compelling circumstances existed to justify a departure from the prescribed sentence of life imprisonment.


4. Court’s Reasoning


On conviction, the appeal court emphasised that the regional magistrate had delivered a detailed assessment of the evidence for both the State and the defence. The regional magistrate was described as being alive to the caution required where the complainant was a young child and where her evidence, in substance, carried the characteristics of a single witness account. The appellate court noted that the trial court approached the evidence with that caution in mind and looked for support for the complainant’s account in the testimony of other witnesses.


The appeal court considered the corroborative value of the evidence of Ms J (the aunt) and of Dr Kruger. Ms J’s testimony was accepted as reliable and as supporting the complainant’s report of repeated abuse, including the complainant’s reluctance to go home and the emotional state observed at disclosure. Dr Kruger’s evidence was treated as supportive in that the genital findings, though not fresh injuries, reflected healed trauma and changes consistent with penetrative injury, which aligned with the complainant’s account of repeated sexual penetration over time.


The appeal court further endorsed the trial court’s reasoning that the nature of the relationship between the complainant and the appellant—described as protective and generally positive—made a false implication less probable on the trial court’s assessment. The appeal court accepted that the trial court was entitled to find that there was no persuasive reason for the complainant to fabricate allegations against the appellant in that context.


In rejecting the defence, the appeal court highlighted that the regional magistrate had analysed the appellant’s testimony in detail and rejected his assertion that the complainant fabricated the allegations as opportunistic and contrived. The attempt to attribute genital injury to other boys was treated as unsubstantiated, and an attempt to introduce an incident about a cellphone was regarded as irrelevant to the rape charges and as a distraction rather than a material defence. The appeal court also noted the trial court’s adverse impression of the complainant’s mother, including the view that she had abdicated responsibility and sought to protect the appellant, which further affected the weight to be placed on her evidence.


On sentence, the appeal court considered that the regional magistrate had carefully addressed the seriousness of the offences, the circumstances of their commission, and the appellant’s personal circumstances, including age, education level, health, employment history, and prior conviction (which was not of a similar sexual nature). The court took into account the reports placed before the trial court, including a social worker’s report connected to intermediary proceedings and a probation officer’s report recommending direct imprisonment.


The appeal court endorsed the trial court’s conclusion that the offences involved sustained predation upon a young child in a position of trust and that the impact on the child was profound, including emotional consequences and difficulties at school. The appellant’s lack of remorse and absence of insight were treated as relevant to sentence. In light of these factors, and in the absence of substantial and compelling circumstances beyond personal circumstances, the appeal court found no misdirection or irregularity in the imposition of the prescribed sentence of life imprisonment.


The appeal court additionally expressed concern about child protection and victim support beyond the criminal case outcome. It indicated that the complainant’s mother’s conduct required investigation to protect the complainant’s younger sibling, and it requested prosecutorial authorities to engage social workers to address school-based interventions and to secure counselling and therapeutic support for the complainant. These observations were framed as concerns and requests ancillary to the primary appellate determination.


5. Outcome and Relief


The appeal against conviction and sentence was dismissed. The appellant’s convictions on both counts were confirmed, and the sentence of life imprisonment was confirmed.


The order included that the appellant’s details be entered in the register of sexual offenders, as had been ordered by the regional magistrate.


No separate costs order was made in the criminal appeal.


Cases Cited


No case citations are specified in the provided judgment text.


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 3 read with sections 1 to 55, 56(1), 56A, 57, 58, 59, 60 and 61).


Criminal Procedure Act 51 of 1977 (section 170A, and further unspecified provisions referred to generally).


Rules of Court Cited


No rules of court are cited in the provided judgment text.


Held


The High Court held that the regional magistrate had not committed any irregularity or misdirection in evaluating the evidence, and that the complainant’s evidence was sufficiently consistent and supported by the testimony of her aunt and by medical evidence reflecting genital findings consistent with prior penetration. The appellant’s denial and alternative explanations were rejected as lacking substance, and the trial court was held to have been entitled to reject the defence version.


The High Court further held that the sentence of life imprisonment, imposed under the prescribed minimum sentence framework as applied by the trial court, disclosed no irregularity. The appellant’s personal circumstances did not constitute substantial and compelling circumstances justifying deviation, particularly given the repeated and prolonged abuse of a young child in a relationship of trust and the demonstrable harm to the complainant.


LEGAL PRINCIPLES


The judgment applied the principle that where a complainant is a young child and effectively a single witness on the commission of the offences, the trial court must approach the evidence with appropriate caution, and must evaluate whether there is sufficient support or corroboration in other evidence, including first reports and objective medical findings, to justify acceptance of the complainant’s version beyond reasonable doubt.


In an appeal against conviction, the judgment proceeded from the approach that factual findings and credibility assessments by the trial court, where based on a careful and detailed evaluation of the evidence, will not be interfered with absent a demonstrable irregularity or misdirection.


On sentence, the judgment applied the principle that where minimum sentence legislation prescribes life imprisonment for specified sexual offences, a court may deviate only if substantial and compelling circumstances are present. The mere presence of ordinary personal circumstances, without more, does not necessarily justify a departure, particularly where the offending is severe, repeated, involves breach of trust, and causes significant harm.


The judgment also reflected the sentencing principle that a sentencing court must consider the offence, the offender, and the interests of society, together with the broader purposes of punishment, while remaining attentive to the particular vulnerability of child victims and the long-term consequences of sexual violence.

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[2020] ZAWCHC 75
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Konstabel v S (A111/2020) [2020] ZAWCHC 75 (11 August 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: A111/2020
In
the matter between:
CEDRIC
KONSTABEL
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED: 11
AUGUST 2020
SALDANHAJ:
[1]
The appellant, Mr Cedric Konstabel was convicted in the regional
court, Oudtshoorn of the repeated rape and sexual abuse over
a period
of two years of an 8 year old child, the daughter of his partner with
whom he lived. In application of the minimum sentence
legislation and
having found no substantial and compelling circumstances to deviate
therefrom, "the regional magistrate sentenced
the appellant to
life imprisonment. He comes before this court by virtue of an
automatic right of appeal in the light of the sentence
of life
imprisonment.
[2]
Two charges were preferred against the appellant relating to the
contravention of Section 3 read with Sections 1 to 55, 56 (1),
56A,
57, 58, 59, 60 and 61 of the Criminal Law Amendment Act of Sexual
Offences 32 of 2007 read together with various provisions
of the
Criminal Procedure Act. The appellant was alleged to have committed
the offences during 2018 where at or near Oudtshoorn
he wrongfully
and unlawfully sexually penetrated a minor child D­ AW by
penetrating her vagina with his penis without her consent.
The State
alleged that the appellant had done so on several occasions and in
respect of the second count that he had likewise contravened

provisions of the Sexual Offences Act 32 of 2007 in that he had
forced his penis into the mouth of the minor child for her to suck

and did so without her consent.
[3]
The appellant was legally represented at the trial, pleaded not
guilty and put the state to the proof of all of the elements
of the
offences. He admitted though the identity of the complainant, her age
as nine years and that she was the daughter of his
partner .The state
tendered the evidence of the complainant D-A.W who testified with the
assistance of an intermediary in terms
of Section 170A of the
Criminal Procedure Act. Ms. A J the complainant's aunt and Dr Herman
Kruger, medical practitioner who was
present during the medical
examination of the complainant also testified on behalf of the State.
The birth certificate of the complainant
was handed into evidence
with the consent of the defense and so too was a set of photographs
where the incidents were alleged to
have occurred. The appellant
testified in his own defense and tendered the evidence the mother of
the complainant, Ms. V. W.
[4]
At the time of her testimony the complainant was 9 years old and was
in Grade 3.
[5]
Briefly stated, the facts relevant to the charges are that the
complainant and her younger three year old sister lived with
the
appellant and her mother. While her mother was at work the
complainant would be cared for by the appellant upon her return
from
school. The appellant was unemployed at the time. The complainant
testified that while she was in Grade 2, upon her return
from school
one afternoon, the appellant placed her on the bed in her mother's
bedroom, removed her panty , undressed himself and
thereupon inserted
his penis (which she referred to as "tottermannetjie" and
"worsie") into her vagina (which
she referred to as her
"koekie"). While doing so, the appellant made a "wip"
like motion on top of her. She
demonstrated in the court a
quo
the
motion with the use of anatomical dolls and also pointed out the
penis of the appellant on the male doll. She claimed that the

appellant had pushed her face -a way when she cried and that she was
scared "bang" and suffered pain in her genitals
as a result
of what the assault did. She also claimed that at times he had also
forced his penis into her mouth and demanded that
she suck it.
[6]
She reported the first incident to her mother who she claimed used
the light on a cellphone to look at her private parts and
that she
promised to take action against the complainant by throwing boiling
water over him. Her mother did nothing about the abuse
and the
appellant unabatedly repeated his sexual assaults on her. She
subsequently reported it to her aunt Ms J, who was the head
of a
creche where she spent time after school playing with her cousin. The
police were notified and was she was subsequently examined
by a
doctor.
[7]
Ms J testified that one afternoon she noticed that the complainant
was reluctant to go home after playing with her cousin. She
noted
what she described as a rather 'lelik' expression on the face of the
complainant. Upon enquiry the complainant reported her
fear of going
home because of the repeated sexual abuse at the hands of the
appellant. The complainant cried when doing so and
claimed that
despite her mother using the light on her cellular phone to inspect
her vagina she did absolutely nothing about the
abuse. In utter
shock, Ms January immediately reported the matter to the police and
the complainant was taken the following day
to the hospital at
Oudtshoorn. There, she was examined by Doctor Herman Kruger. He
testified in some detail about the injuries
observed in the genital
area of the complainant with reference to the Medical Examination
form (J88) filled in by a Dr. van Eden.
The complainant was in such a
state that they had to place her under local anesthetic to conduct
the examination. He described
injuries in the area of the vagina that
appeared to have already healed and that her hymen was no longer
intact. He was of the
view that the injuries were consistent with the
complaint by the child of sexual penetration. There appeared to be no
fresh injuries
but he described bumps, clefts and scarring in the
vagina area as indicative of injuries that were incurred months ago
and that
were already healed.
[8]
The appellant testified in his own defence and flatly denied having
sexually assaulted the complainant. He confirmed her evidence
that
she had a good relationship with him and that he had often intervened
on her behalf when her mother physically chastised her.
He referred
to an incident which the complainant had been asked about in
cross-examination that while in grade three she was sexually
abused
by a young boy by the name of A. She claimed that he had placed his
penis on top of her vagina and that it was painful.
She had also told
her mother about it. The appellant claimed that the complainant was
inclined to make up stories and that several
people had also come to
their house and claimed that other boys had played with the
complainant's private parts. The complainant
emphatically denied such
claims.
[9]
In her testimony the mother of the complainant denied that the
complainant had ever reported to her the sexual assault on her
by the
appellant. She claimed that if the complainant had done so she would
have taken action against him. She also denied having
examined the
complainant's private parts with the use of the light of a cell
phone. She claimed that the appellant had made reports
to her of
claims that other boys in the community had sexually abused the
complainant but that she had never reported it to the
police for
investigation. All she did was rather to chastise the complainant
about the allegations. She also confirmed the protective
relationship
that existed between the appellant and the complainant and that he
always intervened on her behalf whenever she chastised
the child.
[10]
On appeal the appellant challenged the findings of the court a
quo
on the basis that the State had failed to prove beyond reasonable
doubt the charges against him and that the court should have accepted

his version as reasonably true. The appellant claimed that the court
a
quo
had erred in its assessment of the evidence and in
particular claimed that the complainant was an unreliable and poor
witness. The
appellant also claimed that evidence of any rape by him
of the complainant was not supported by the medical evidence.
[11]
In respect of the sentence imposed the appellant claimed that the
court a
quo
erred in not having sufficiently considered his
personal circumstances, not having individualized the sentence and
over-emphasised
the interests of society.
[12]
In my view the regional magistrate had given a detailed and careful
assessment of all of the evidence by the witnesses for
both the state
and the defense. The court a
quo
was particularly mindful of
the caution to be applied to the evidence necessitated by the
complainant being both a young child and
a single witness and whose
evidence required corroboration in the testimony of others. The court
a
quo
elaborated on the approach to be adopted to the evidence
with reference to both the relevant law and the guidance of decided
cases.
The court
a quo
found that the evidence of the
complainant was consistent and indeed supported by that of Dr Kruger
and that of her aunt Ms. J.
Moreover the evidence of the protective
relationship of the appellant over the complainant and was supported
by the appellant himself
and that of his witness, the mother of the
complainant. The court a
quo
was of the view that given the
nature of their relationship that there was no reason for the
complainant to have falsely implicated
the appellant of the sexual
abuse on her. The evidence of the complainant's aunt Ms. J was also
carefully considered by the court
and found to be both reliable and
supportive to that of the complainant.
[13]
The regional magistrate spent much time in its judgment and with
great detail in analyzing the evidence of the appellant himself.
He
was of the view that the appellant's claim that the complainant made
up stories was without merit and was no more than an opportunistic

claim. His attempt at dismissing the claims of the sexual assault by
him as no more than a made up "storie" by the complainant

was considered as contrived. So too, was his deflection of her
injuries to her vagina as that caused by other boys that allegedly

played with her "onderdele" as blatantly without substance.
The appellant also sought to suggest that the complainant
and her
aunt had falsely accused him of having stolen the aunts cellphone and
that the police had been sent to the house on the
day of the arrest
to confront him about it. Ms. J and the complaint explained that it
was not the appellant who had stolen the
cellphone but rather the
complainants mother. The cell phone incident was no more than a red
herring and entirely irrelevant and
separate to the rape charges
against the accused.
[14]
In her testimony it was both evident and disconcerting that the
mother of the complainant had simply abdicated any responsibility

towards the complainant, her own child and had literally gone out of
her way to protect the appellant. She was the least impressive
of any
of the witnesses and demonstrated a complete disregard and lack of
empathy for the complainant both at the time at which
the child
reported the sexual assault to her and in her testimony in court.
[15]
I am more than satisfied that the regional magistrate had not
committed any irregularity in his findings of fact and the inferences

drawn therefrom. There is, in my view, no merit in the appeal on
conviction and I have no hesitation in confirming the findings
of
guilt of the appellant on both counts.
[16]
This matter demonstrates the most unconscionable and vile conduct of
the appellant who preyed on a young and helpless child
over who had
been in a position of trust. He abused it and did so with impunity
over many months.
[17]
The regional magistrate with much care and detail dealt with the
circumstances in which the offences were committed and in

particularly that of the personal circumstances of the appellant. The
state proved no previous convictions of a similar nature
against the
appellant other than a conviction of housebreaking.
[18]
The report prepared by the social worker for the purposes of the
section 170A proceedings relating to the use of an intermediary
was
entered into evidence on sentence. The impact of the offences on the
child was highlighted in the report. A probation officer's
report for
correctional supervision was also prepared in respect of the
appellant with regard to his circumstances and in which
a
recommendation was made for direct imprisonment.
[19]
The complainant reported to the social worker that she had
experienced numerous feelings during the incident. She stated that

she was confused, angry, sad and scared. She harboured feeling of
anger and fear of the appellant. In her testimony Ms. J, the
aunt
informed the court that the child experienced serious difficulties at
school. She had to be moved to the class of a different
teacher. She
became aggressive towards male children out of a "tipe van
wraak," revenge. The children also teased her
about having been
raped and she developed a sleeping problem and was often found lying
awake at 2 am in the morning watching television.
Needless to say the
incidents of the sexual abuse by the appellant had a profound effect
on her.
[20]
The appellant testified in mitigation. He was 29 years old at the
time of the trial and remained in the relationship with the

complainant's mother. He had no children of his own. He claimed to
have farmed with pigs but that his brother had since run the

business. The business supported his younger brothers. He claimed to
have suffered from TB. He went no further than grade 9 at
school. His
43 year old mother suffered from a chest condition and his father was
deceased. He expressed no remorse about the sexual
abuse and
maintained his innocence. He failed to demonstrate any insight into
the profound and serious damage he inflicted upon
the young
complainant.
[21]
The court a
quo
likewise dealt extensively with the relevant
provisions of the legislation relating to sexual offences and
comparative case law.
He was mindful of the objectives of sentence
and the appropriate factors to be taken into account, such as the
nature and seriousness
of the offence, the interests of the public
and the personal circumstances of the appellant. The appellant had
placed no substantial
or compelling circumstances other than his
personal circumstances before the court for it to have deviated from
the prescribed
sentence of life imprisonment.
[22]
The appellant had systematically and over an extended period of
almost 2 years abused the complainant by repeatedly raping
her and
forcing his penis into her mouth. The cold hearted and brutal nature
of these offences on this young child is self evident.
[23]
I find no irregularity in the sentence imposed by the regional
magistrate and likewise have no hesitation in confirming it.
[24]
A matter of particular concern in these incidents is the role and the
conduct of the complainant's mother Ms. V.W. Her conduct
and lack of
insight into the actions of the appellant should be thoroughly
investigated by a social worker to ensure that the other
minor child
is not subjected to any risk while in her care.
[25]
Ms J testified that the complainant child had also been teased by
other children at the school for having been raped. This
compounded
the trauma suffered by the child. The National Director of Public
Prosecutions is kindly requested to engage a social
worker in the
area the school is situated to arrange appropriate interventions at
the school with regard to educating young children
about sexual abuse
and the trauma experienced by victims.
[26]
Moreover, I am equally concerned that the complainant child in this
matter had not received any counselling for the trauma
that she
suffered and continues to exhibit. The Provincial Director of Public
Prosecutions is likewise requested to ensure that
a social worker is
engaged to assist the child and that she receives the necessary
therapeutic counselling which may include the
expert services of an
psychologist in the employ of the state or appropriate trauma
institution. Confirmation of such engagement
and progress is to be
furnished to the office of the Provincial Director of Public
Prosecution.
[27]
In the result I propose the following order:
1.
The appeal against conviction and sentence is dismissed and the
sentence of life imprisonment is confirmed. The details of the

appellant are to be entered, as ordered by the regional magistrate,
in the register of sexual offenders.
____________________
VC
SALDANHA
Judge
of the High Court
I
agree and it is so ordered.
____________________
ET STEYN
Judge
of the High Court

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