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[2014] ZAGPJHC 446
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Baloyi v S (A127/2011) [2014] ZAGPJHC 446 (20 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
SOUTH LOCAL DIVISION, JOHANNESBURG
CASE
NO: A127/2011
DPP
REF NUMBER: 9/2/5/1 (2013/0565
In
the matter between:
BALOYI,
BEN
ABEL Appellant
and
THE
STATE Respondent
JUDGMENT
MABASA
AJ
[1]
This is an automatic appeal against conviction and sentence.
The
appellant is a 25 year old male convicted on a charge of raping a
twelve year old girl on three separate occasions during the
period of
June 2007 to September 2007. He was sentenced in thepe Protea
Regional Court on 19 June 2009 to life imprisonment, the
prescribed
minimum sentence in terms of
section 51
(1) of the
Criminal Law
Amendment Act 105 of 1997
. He was also declared unfit to possess a
firearm.
[2]
The complainant L, was born on 11 October 1995 and was 12 years old
at the time of the rape. She is the biological daughter
of the second
state witness, Selina Phakathi. She testified
in camera
and
through an intermediary when she was 14 years old.
[3]
She testified that she knew the appellant because he resided with his
girlfriend Thelma in the same yard as her mother and herself.
She
referred to the appellant as Ben.
[4]
She testified that Ben raped her on three separate occasions. The
first incident occurred when Thelma came to her mother and
asked if
she could sleep over at Ben’s place, under the false pretext
that Ben was not at home. When she entered his room,
Thelma closed to
her mouth with a cloth, undressed her and Ben raped her. She was then
threatened by him that he would kill mother
if she disclosed what
happened. Thelma also repeated the threat.
[5]
About one month later Ben called her to his room again, saying that
he wanted to send her to the shop to buy bread for him.
When she was
inside he closed the door and raped her again. She did not go home
after this incident but went to her grandmother’s
house
instead. She was afraid and cried.
[6]
The third rape occurred sometime in September 2007 when Ben asked her
to go and buy cold drink for him. He instructed her to
fetch the
bottle from his room and once she was inside he locked the door and
raped her again. She was crying and he told her to
go home.
[7]
When she arrived at her grandmother’s house, the grandmother
asked why she was crying and she started vomiting. Only the
next day,
when she was confronted by her grandmother about her deteriorating
school performance, did she confide in her grandmother
about what Ben
was doing to her. Her grandmother then told her biological mother
what was happening, and the matter was reported
to the police.
[8]
The second state witness was the aunt of the complainant. The
complainant refers to her as her grandmother (according to Tsonga
custom). She testified that she noticed that the complainant was sick
and that she was not doing well at school. She did not see
the
complainant crying. When she confronted her, the complainant told her
what Ben was doing to her. She then informed the mother
of the
complainant, who is her sister and together they reported the matter
to the police. The complainant was then taken for a
medical
examination.
[9]
The third state witness was the biological mother of the complainant.
She testified that she had a good relationship with the
appellant.
There were no ill feelings between them. They resided in the same
yard. She confirmed that the appellant lived with
his girlfriend
Thelma.
[10]
When the first incident occurred Thelma called the complainant and
she only came back home around 23h00pm, when she was already
asleep.
She denied having any sexual relationship with the appellant. She is
married and her husband lives in Mozambique. She could
not tell the
court her age, only that her oldest son was already married and that
she has a grandchild.
[11]
A medical examination was conducted on the complainant on 28
September 2007 at Lenasia South Clinic. The gynaecological
examination
noted and old healed injury, healed cuts and bumps at
three different places, and the hymen was not intact. The conclusion
was
that forceful vaginal penetration could not be excluded. The
doctor who completed the report was not called to testify.
[12]
The appellant pleaded not guilty. At the commencement of the trial
when the charges were put to him, it was placed on record
by the
prosecution and regional magistrate that each of the three charges
against him carried a minimum sentence of life imprisonment
if he was
found guilty.
[13]He
denied that he had raped the complainant. He testified that the third
state witness was his lover. He claimed that she instructed
the
complainant to call him “dad” and that the child did not
like it. That is the reason why they conspired to have
him arrested.
He claimed that the child was influenced by her mother to falsely
implicate him.
[14]
The essence of the of the appellant’s argument on appeal is
that there are contradictions between the testimony given
by the
complainant and the state witnesses. There is also a discrepancy in
the medical history given to the doctor completed the
J 88. The
doctor noted that the applicant reported that after the first
incident involving Thelma, the appellant raped her again
on three
other occasions.
[15]
Counsel for the applicant also submitted that the magistrate
misdirected herself by not having regard to the cautionary rule
applicable to a single witness such as the complainant.
Evaluation
of the evidence
[16]
There are conflicting versions between the complainant and the
appellant. She is a single witness who was only 12 years old
at the
time of the rape. The
court a quo
correctly noted that her
testimony has to be approached with caution.
[17]
The magistrate found that the complainant gave her evidence in a
consistent and coherent manner. Taking into consideration
her tender
age and the fact that she testified two years after the incident
occurred, the contradictions between her evidence and
that of the two
state witnesses were considered minor and not material. In
S v
Francis
1991
(1) SACR 198
(A) at 204c it was held that the trial
court’s findings of fact and credibility are presumed to be
correct because the trial
court has had the advantage of seeing and
hearing the witnesses, and is in the best position to determine where
the truth lies.
Also in
R v Dhlumayo and Another
1948 (2) SA
677
(A) Davis AJA held that the trial court had the opportunity of
observing the demeanour of the witnesses, their appearance and
personality.
This should never be overlooked.
[18]
The magistrate’s evaluation of the evidence was correct. She
applied the necessary caution. She had due regard for the
youthfulness of the complainant. She accepted that the complainant
feared that the appellant was capable of carrying out his threats
of
killing her mother and that is why she did not immediately report the
rapes. She was also satisfied that the medical evidence
corroborated
the complainant’s version.
[19]
The magistrate found that the appellant was an untruthful witness.
His claim that the mother of the complainant influenced
her to
falsely implicate him because he refused to buy her television set
was dismissed as untruthful. The appellant’s claim
that she was
his lover was also disbelieved because she appeared to be much older
than the appellant, is a married woman and also
grandmother. She did
not initiate proceedings against the appellant and the magistrate was
of the view that it was unlikely that
the complainant was being
manipulated by her to falsely implicate the appellant.
[20]
There was no misdirection on the facts by the trial court. In my view
the appeal against the conviction cannot succeed.
[21]
With regard to the sentence,
section 51(1)
read with
part 1
of Act
105 of 1997, provides that if a person is convicted of a crime of
rape where the victim is under the age of 16 years old,
the court is
required to impose a sentence of life imprisonment unless there are
substantial or compelling factors. It was stated
by Cameron JA in
S
v Abrahams
2002 (1) SACR 116
(SCA) at para 29 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.
[22[
It was submitted on behalf of the appellant that he was 25 years old,
he was single without any dependents, and prior to his
arrest he was
employed and earned R900.00 per fortnight. He was also a first
offender. He spent 21 months in custody awaiting trial.
[23]
Counsel for the appellant submitted that these factors together with
the fact that the rape in this case cannot be classified
as the worst
category of rape, since the complainant did not suffer any physical
injuries, constituted substantial and compelling
circumstances
justifying the imposition of a lesser sentence then the prescribed
minimum sentence of life imprisonment.
[24]
The trial court found that the following aggravating circumstances
were present: the complainant was raped when she was only
12 years
old; she was raped repeatedly on three separate occasions by the
appellant; she was and still is a vulnerable, innocent
and
defenceless child who carried the burden of her ordeal with her for
three months because the complainant threatened to kill
her mother.
The appellant, being a neighbour, was in a position of trust over the
complainant and had a duty to protect the complainant
instead of
sexually abusing her. Even though no victim assessment report was
requested by the court a
quo
, there was unchallenged evidence
that her school work was affected by the rape. She was also
physically sick. The second and third
rapes were aggravating factors
in themselves.
[25]
In S v Mako
2005 (2) SACR 223
(E) it was held that various
elements are considered in imposing sentence, namely the interests of
the community, the personal
circumstances of the accused and the
nature of the offence. These considerations have become trite when
courts are imposing sentence.
[26]
Our society is experiencing an alarming level of gender-based
violence. In this regard the Supreme Court of Appeal noted
in
Director of Public Prosecutions, Western Cape v Prins and others
2012 (2) SACR 183
(SCA) Wallace JA (Mpati P and Navsa, Brand and
Malan JJA )concurring that :
‘
N
o
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… These rights to dignity and bodily
integrity
are fundamental to our humanity and should be respected for that
reason alone…
They are many judgments
in which our courts have emphasised the need for the rights of
vulnerable people, in particular women and
children to be respected
and protected .One of the ways in which that needs to be done is by
the effective prosecution of
those who infringe those rights.’
[27]
The appellant showed no remorse. The fact that he was 25 years old at
the time when he committed the offence can be regarded
a neutral
factor as stated in
S v Matyityi
2011 (1) SACR 40
SCA where
the Supreme Court of Appeal made it clear that the respondent’s
age at 27 was at best a neutral factor. It was
also emphasised in
this case that our courts have a duty to implement minimum sentences
prescribed by the legislature. There must
be truly convincing reasons
to depart from them. I have not found such convincing reasons. There
are no substantial or compelling
circumstances factors.
[28]
Having regard to the repeated nature of the rapes and the fact that
the complainant was under the age of 16 at the time, the
sentence of
life imprisonment is not shockingly disproportionate. In the absence
of misdirection or disproportionality, there is
no reason for this
court to interfere with the sentence.
[29]
I propose making the following order:
The
appeal against the conviction and sentence is dismissed.
_____________________________
MABASA AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
I
concur
_____________________________
MAYAT J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Applicant: Adv Gaurneri
Instructed
by: Legal Aid South Africa
Counsel
for the Respondent: Adv Coetzee
Instructed
by: Director of Public Prosecution
Date
of Hearing: 20 May 2014
Date
of Judgment: 20 May 2014