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[2014] ZAGPJHC 267
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Zayo v S (A91/2014, JPV 2004/6303) [2014] ZAGPJHC 267 (14 October 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A91/2014
JPV
2004/6303
DATE:
14 OCTOBER 2014
In the matter
between:
ELLIOT
ZAYO
.......................................
Appellant
And
THE
STATE
.......................................
Respondent
J U
D G M E N T
TSOKA, J:
[1] The appellant,
Mr Elliot Zayo (“Mr Zayo”) was charged and convicted by
the Regional Court at Protea, Soweto with
rape of a 14 year old
female.
[2] In terms of s 51
of Act 105 of 1997 (“the Act”) the conviction attracts
minimum sentence of life imprisonment unless
there exists substantial
and compelling circumstances warranting departure from imposing the
minimum sentence.
[3] As the Regional
Court at the time was not competent to impose the prescribed minimum
sentence of life imprisonment, Mr Zayo
was referred to this Court for
sentencing in terms of s 51(1) of the Act.
[4] This Court
(Mophosho AJ) having been satisfied that the proceedings in the
Regional Court were in accordance with justice, confirmed
the
conviction and sentenced Mr Zayo to life imprisonment as there were
no substantial and compelling circumstances entitling the
court to
impose any lesser sentence.
[5] On 14 June 2013
Mr Zayo was granted leave to appeal against both the conviction and
sentence. This is the appeal before us.
[6] The appeal is,
in the main, directed against the trial court’s finding that
the evidence of the complainant was satisfactory
in all material
respects and thus proves the guilt of Mr Zayo beyond reasonable
doubt.
The Conviction
[7] According to the
complainant, Mr Zayo had sexual intercourse with her for the first
time in 2001 as his sangoma had advised
him that the assault charges
he was facing would be withdrawn against him. The sexual intercourse
was without her consent. It occurred
when she had just come out of a
bath when Mr Zayo, who is her aunt’s lover, pushed her to the
bed and raped her. At that
time, the other children who stayed with
them in the one room home separated by a curtain, were ordered by Mr
Zayo to go and play
outside. The complainant’s aunt, who lives
with Mr Zayo as husband and wife, was at work at the time.
[8] On her aunt’s
return from work, the complainant reported the rape to her aunt.
Instead of the aunt confronting Mr Zayo,
the aunt did not believe
that the complainant had been raped by Mr Zayo but instead beat her
up.
[9] The sexual
assault continued throughout 2001 ultimately resulting in the
complainant falling pregnant towards the end of the
same year. When
she discovered that she was pregnant, she again reported the
pregnancy to her aunt who this time instructed her
to abort the
foetus which she did. The complainant was told by her aunt that
‘this’, meaning the rapes and possibly
the abortion, must
not be talked about. This led the complainant to lead a miserable
and unhappy life as her aunt kept swearing
and referring to her as a
‘bitch and prostitute’. The aunt threatened to kill her
for sleeping with Mr Zayo whom she
regarded as her husband.
[10] As the swearing
and abuse by her aunt continued, the complainant decided to end it
all by committing suicide. One morning when
she was about to commit
suicide she met one N……. to whom she related her story.
It was N…… who suggested
that the complainant report
Mr Zayo to the police.
[11] Dr Ophiong, the
medical practitioner who examined the complainant in January 2002,
testified that the complainant reported
to him that she was raped on
many occasions by Mr Zayo. Indeed on examination he came to the
conclusion that the complainant was
medically raped resulting in the
complainant acquiring a transmitted infection.
[12] N………
corroborated the version of the complainant. She confirmed that,
that morning while taking her child
to crèche, she saw the
complainant sitting on the pavement crying. She became concerned and
asked the complainant the reason
why she was crying. It was then that
the complainant told her that she was abused by her father who slept
with her. The complainant
did not tell her that she reported the
abuse to the aunt. This was so as according to the complainant the
aunt was ‘kwaai’,
meaning very strict. The complainant
further pointed out to N……. that she did not report the
abuse to her teachers
as they in turn would report it to her aunt who
will undoubtedly assault and swear at her. The complainant was so
desperate that
she wanted to commit suicide by jumping in front of a
moving train, so said N…………... She was
also informed
by the complainant that ‘when days are dark
friends are few’ hence she had no shoulder to cry on. Being a
parent and
concern about the situation, N………….
accompanied the complainant to the complainant’s school where
she reported to the principal what the complainant had told her. The
principal advised them to contact the Family Child Violence
and
Protection Unit of the South African Police Service who arrested Mr
Zayo.
[13] On his arrest,
Mr Zayo made a statement to Inspector Sebuledisho attached to the
Family Child Violence and Protection Unit.
Inspector Sebuledisho
testified that Mr Zayo admitted the sexual intercourse as according
to him the complainant enticed him as
she would walk in their one
room house naked in his presence. In fact according to the statement
Mr Zayo made to her, it is in
fact the complainant who requested Mr
Zayo to have sexual intercourse with her. After the sexual
intercourse had taken place,
he realized that he was tricked by the
complainant whereafter he felt sorry for what he did. He apologised
to the complainant
whereafter the rape was discussed with the
neighbours. The issue was then amicably resolved. According to Mr
Zayo’s statement,
the complainant ran away from their home as
Mr Zayo was unwilling to have further sexual intercourse with her.
In his statement
Mr Zayo confirmed that the complainant indeed fell
pregnant as a result of the sexual encounter with him. He also
confirmed that
the complainant aborted the pregnancy although he did
not state that the complainant was persuaded to do so.
[14] In his
testimony, Mr Zayo testified that the complainant slept around with
other boys and that it was in fact one N……….
who
impregnated her contrary to the admission he made to Inspector
Sebulodisho. In his testimony he emphatically denied that he
ever
raped the complainant. According to Mr Zayo the complainant had
sexual intercourse with one M………., the
complainant’s boyfriend, not him.
[15] Mr Zayo stated
further that it is N……….. Who prevailed upon the
complainant to lay false charges against
him as she, N………….,
was encouraging her to have sexual intercourse with other boys. He
is falsely
being implicated by N……….. as he and
the latter are no longer on speaking terms.
[16] Although the
complainant is a single witness her version of events is supported by
the evidence of N…………,
the doctor who
examined her early in 2002, and by Mr Zayo himself in the statement
he freely made to Inspector Sebuledisho.
[17] Mr Zayo’s
version as to what happened between him and the complainant is not
only improbable but beyond reasonable doubt
false. It is improbable
that the complainant, a child of 14 years would ask him to have
sexual intercourse with someone she regards
as her own father. It is
also beyond belief and illogical that a child of 14 years could boast
to her father that she had had
sexual intercourse with older men than
her own ‘father’.
[18] His version
that N……… is falsely accusing him of rape is
also false beyond reasonable doubt. N………….
is the person who rescued and was prepared to listen to the
complainant, when during that time, no one, including the aunt, was
prepared to listen to her cries for help.
[19] In the result I
find that, in the circumstances of this matter, the complainant’s
evidence complies with the provisions
of
s 208
of the
Criminal
Procedure Act 51 of 1977
, i.e. that is to say is satisfactory in all
material respects. The totality of the evidence on record indeed
proves beyond reasonable
doubt that during 2001, Mr Zayo, on several
occasions, raped the complainant resulting in her falling pregnant
which pregnancy
was aborted on the advice of both Mr Zayo and the
complainant’s aunt.
Sentence
[20] It is settled
that imposition of sentence falls squarely within the discretion of
the trial Court. An appeal court is not at
liberty to interfere with
the discretion unless the trial court is found to have misdirected
itself or the sentence imposed is
so disturbingly inappropriate or
shocking that had the appeal court sat as the trial court would not
have imposed such sentence.
This proposition is well articulated in S
v Malgas
2001 (1) SA 469
SCA in para [12] where it was stated:
‘A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the
question of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers
it. To do so would usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates
its exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing
so, it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance.
As it is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
court may yet
be justified in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as ‘shocking’,
‘startling’, or ‘disturbingly inappropriate’.
It
must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is at large in the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord
with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation.’
[21] In argument
before us, Counsel for Mr Zayo submitted, in the main, that the age
of Mr Zayo; the fact that he was a first time
offender and that no
fortuitous violence was used in perpetrating the rape constitute
substantial and compelling circumstances.
I do not agree. The facts
of this matter reveal that the rape took place on many occasions
during 2001. The rapes resulted in pregnancy.
The complainant was
implored to abort the pregnancy and to keep it a secret so that the
truth of the abuse should not be known.
[22] Furthermore, it
can hardly and seriously be argued that no fortuitous violence was
used to commit the rapes. In the present
matter, the complainant was
a child of 14 years of age. She was violated not by a stranger but by
someone she regards as a father
figure. The rapes took place in the
sanctity of her own home, a place of all places where she must feel
safe and secure from the
scourge of unabbeting violence against
members of the vulnerable section of our society: girls and women.
[23] No amount of
force or violence is required to subdue a child such as the
complainant to submit to rape. The mere fact that
Mr Zayo was 40
years old and that he was a first offender can hardly be argued as
remorse which remorse enhances the prospects
of rehabilitation. In S
v Matyityi 2011 (1) SACR (SCA) at para [13] the court reasoned that:
‘...before a
court can find that an accused person is genuinely remorseful, it
needs to have a proper appreciation of, inter-alia:
what motivated
the accused to commit the deed; what has since provoked his or her
change of heart; whether he or she does indeed
have a true
appreciation of the consequence of those actions. Until the facts are
known, it is difficult, so the court reasoned,
to determine whether
an accused person is indeed remorseful in that he or she ‘has a
growing pain of conscience for the plight
of another’.
[24] If anything
else, the facts of this matter reveal more aggravating than
mitigating factors. As clearly pointed out above, the
complainant was
raped by a person she regards as her father figure. She was raped by
a person whom society expects to protect than
to violate. The
complainant was violated in the sanctity of her own home.
[25] Mr Zayo’s
apology and admission of the rapes in his statement to Inspector
Sebuledisho is not appreciation of the wrongfulness
of his actions.
The apology is regret that his actions have been exposed. No remorse.
Had it not been the maternal instinct and
the rare civic duty of
N………, the rapes and abuse of this poor child
would have remained a secret.
[26] Lastly, it is
worth reiterating the words of Mathopo AJA in S v Kekana (629/2013
[2014] ZASCA 158
(1 October 2014) when confirming life imprisonment
imposed on an appellant who was convicted for murder of his wife. In
para [20]
of the judgment, the learned Judge of Appeal said the
following:
‘[20] Domestic
violence has become a scourge in our society and should not be
treated lightly. It has to be deplored and
also severely punished.
Hardly a day passes without a report in the media of a woman or a
child being beaten, raped or even killed
in this country. Many women
and children live in constant fear for their lives. This is in some
respects a negation of many of
their fundamental rights such as
equality, human dignity and bodily integrity. This was well
articulated in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345A-B when this
court said the following:
‘Women in this
country have a legitimate right to walk peacefully on the streets to
enjoy their shopping and their entertainment
to go and come from work
and to enjoy the peace and tranquillity of their homes without the
fear the apprehension and the insecurity
which constantly diminish
the quality and the enjoyment of their lives.’
[27] Having regard
to the circumstances of the rape which resulted in the pregnancy of
this 14 year old girl; the fact that the
complainant was violated in
her own home by someone she regards as her father; the trauma she
went through to the extent that she
thought of ending it all by
committing suicide; the trauma she went through abortion at her
tender age of 14 years; the emotional
scars, which probably would
endured for life, Mr Zayo’s personal circumstances, in the
context of this matter, cannot by
any stretch of imagination be
regarded as substantial and compelling circumstances warranting any
other sentence than life imprisonment.
The sentence imposed by the
court a quo is, in my view, appropriate. It fits the crime, the
appellant and above anything else,
serves the interest of society. In
the result I find no basis for this court to interfere with the
discretion of the court a quo.
[28] In the result,
the appeal against the conviction must fail. It is dismissed.
M P TSOKA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree:
G M MAKHANYA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree:
B NDAMASE
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR
APPELLANT: Adv. Elvis Tlake
INSTRUCTED BY:
Legal Aid South Africa
COUNSEL FOR THE
RESPONDENT: Adv. MT Ntlakaza
INSTRUCTED BY:
The Director of Public Prosecutions
DATE OF HEARING:
10 October 2014
DATE OF JUDGMENT:
14 October 2014