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[2015] ZAGPJHC 298
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Moeng v State (A350/2014) [2015] ZAGPJHC 298 (11 December 2015)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No. A350/2014
DATE: 11 DECEMBER 2015
In the matter between:
DANIEL
MOENG
.....................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Case Summary: Criminal Law –
Rape – Conviction on one count of rape of a ten year old girl
and sentence of 25 years’
imprisonment confirmed on appeal.
JUDGMENT
MEYER J (RABIE and MOLOPA JJ
concurring)
[1] Arising from an incident that
occurred on 6 November 2005 at Tshing, Ventersdorp, the appellant was
convicted in the Regional
Court, Potchefstroom, on 25 August 2011, of
raping a ten year old girl (the child). The trial court sentenced
the appellant to
25 years’ imprisonment and he was declared
unfit to possess a firearm. Leave to appeal was granted by the trial
court against
both the conviction and sentence. The appeal appeared
before a full bench of this division (Janse van Nieuwenhuizen J and
Phatudi
AJ) who, on 4 March 2015, referred the matter to a full court
of this division.
[2] The child, who was residing with
her mother and stepfather at the time, attended Sunday school at
about 8:00 am in the morning
on Sunday, 6 November 2005. She left
church at around 11:00 am and went to her grandmother. At about 3:00
pm her grandmother
told her to go home. Instead of going home she
went to play at the residence of a friend from school (‘the
child’s
friend) where she spent most of the rest of the day
until at about 8:00 pm. These facts are borne out of the evidence of
the child,
her grandmother, mother and the child’s friend and
were correctly accepted by the trial court.
[3] The appellant went to a local
tavern at about 7:00 pm that evening where he bought a beer. Soon
after the child left her friend’s
residence she and the
appellant encountered one another at what was referred to at the
trial as a ‘thoroughfare’ at
the place where the
appellant bought the beer. The circumstances under which they
encountered each other in the thoroughfare were
in dispute and the
child’s evidence that the appellant, whom she used to see when
he visited at the residence of her friend
and who she believed was a
family member of her friend’s family, called her and told her
that he would take her home because
it was late and that he, under
threat of stabbing her with a knife, raped her when they reached an
area where there were trees,
grass and water, were disputed by the
appellant. He testified that the child appeared in the thoroughfare
while he was drinking
his beer. She, according to him, was crying
and not well kept. He stopped her in order to find out what the
matter was. He took
pity on her and ultimately took her home to his
wife and family where she was put up for the night.
[4] By way of interpolation it should
be mentioned that it is common cause that the appellant is somehow
related to the family of
the child’s friend and that he
occasionally visited the residence of the child’s friend.
Moreover, the child’s
evidence that the occasion when she and
the appellant encountered each other in the thoroughfare was not the
first time that she
had seen him, that she ‘used to see him
visiting’ her friend’s residence and that her friend told
her that he
was a family member is undisputed. The appellant,
however, denied that the child was known to him or that he noticed
her at her
friend’s residence although he conceded that she
might have seen him there.
[5] The appellant testified that when
he had asked the child what the matter was she told him that their
neighbours had asked her
on the Saturday to go and buy alcohol for
them and because she refused they told her that they were going to
tell her mother that
she had slept with a boy. The child, according
to the appellant, told him that her mother had consequently given her
a hiding
on the Saturday and again on the Sunday before the appellant
had met her, and that is why she was crying. The appellant further
testified that she also had told him that her mother and her
stepfather ill-treated her whenever they had consumed alcohol and
that they did not care for her with the social grant money which they
were receiving.
[6] The appellant testified that he
wanted to help the child and he accordingly asked her where she was
attending school and who
her teacher was. She told him that she was
attending school at Nshelemane and that her teacher was Ms Motsume.
The child’s
teacher, according to the appellant, stayed too far
and he accordingly took her to a residence where he knew a social
worker was
residing, but on their arrival there he was told by two
boys that the social worker had moved to Potchefstroom. The evidence
of
the two boys is to the effect that the appellant arrived at their
residence with a little girl asking where Sam, a social worker
who
resided there before, was. They informed him that Sam was no longer
residing there. They could not identify the little girl
who was in
the company of the appellant on that occasion nor could they recall
when it happened. The appellant testified that
he then took the
child to the house of a police officer who was known to him, but the
policeman was not at home. He then took
her to the house where he
and his wife resided. The child denied that the appellant took her
to a house where a social worker
resided in the past or that he took
her to the house of a policeman. According to her he took her
straight to the house where
he and his wife resided after he had
raped her.
[7] The child testified that the
appellant asked her numerous questions after he had raped her, such
as whether her mother was drinking,
where her father was, whether her
stepfather was drinking, whether she was living with her mother and
stepfather, whether her parents
were receiving a social grant, and
that she answered his questions. The appellant, according to the
child, then told her that
he was going to take her to his wife and
that she must tell his wife that her mother and stepfather were
neglecting and abusing
her, that they did not spend any of the social
grant on her that they were receiving for her and that the appellant
had found her
‘on the street’. She testified that the
appellant threatened to kill her if she did not do that, and that she
believed
him. The child testified that she was not abused and she
was properly cared for by her parents. This evidence is corroborated
by that of the child’s mother and to some extent by that of the
social worker who attended at the child’s parental
home a few
days after the incident. She formed the view that the child was
properly cared for.
[8] It is, as I have mentioned, common
cause that the appellant took the child to the house where he and his
wife resided and she
spent the night there. The appellant, according
to the child, sent his wife to buy her a cold drink during which time
he repeated
the threat to kill her if she did not tell his wife what
he had told her to say. The child testified that she told the
appellant’s
wife the ‘lies’. The appellant
testified that he told his wife that the child would tell her that he
had found her
and that she would explain everything to his wife. His
wife took the child into a room where the two of them had a
discussion.
The appellant’s wife, however, testified that the
appellant had also been present in the room when the child told her
what
had happened. She testified that the appellant had told her
that he had found the child ‘on the street’. The child
told her about being neglected and abused by her parents and that her
mother had been assaulting her since the Saturday because
of the
allegation by the neighbour’s wife that she had slept with her
son. The appellant’s wife testified that she
had asked the
child whether they should take her to her mother or to her
grandmother, but the child refused to go to either of
them. The
appellant’s wife also testified that the child told them of her
own accord that she had been raped in 2004.
[9] The next morning the appellant told
the child that he was going to work and he, according to the child,
again repeated the threat
that she must say what he had told her to
say otherwise he would kill her. The appellant testified that he had
explained to his
employer what had happened the previous day and that
he did not know how to help the ‘little girl’. She
advised him
that the only way in which he could help the child was to
take her to a social worker. His employment inter alia entailed
assisting
in the conveyance of children to school by bus. The
appellant’s employer testified that the appellant had told her
that
he had found a child on the street during the evening and that
he had taken her to his wife. She told the appellant that he should
have taken the child to the police and because he did not do that he
should tell his wife to take the child to a welfare officer.
The
appellant testified that at his request the bus driver stopped the
bus in which they were conveying school children at the
appellant’s
house and he then asked her to take the child to ‘social
workers’. The appellant’s wife’s
evidence
corroborated that of the appellant that he returned home from work
and told her to take the child to a welfare officer.
[10] It is common cause that the
appellant’s wife took the child to a social worker. The child
testified that she had told
the social worker what the appellant had
told her to say because he had threatened to kill her and she was
afraid that he would
kill her if she did not do that. The
appellant’s wife was present. The child testified that she was
afraid that appellant’s
wife would tell him if she had told the
social worker the truth. The social worker testified that the
appellant’s wife had
told her that the child’s mother
neglected her, that her husband found the child on the street and
that the child was brought
to their house where she stayed the night.
The social worker also spoke to the child who told her about her
being neglected and
abused. The social worker required to see the
child’s mother in order to hear her side.
[11] From the social worker the
appellant’s wife took the child to the appellant’s place
of employment. The appellant’s
employer testified that she had
asked the child why she was on the streets at the time when the
appellant found her and that the
child then told her that she was
being ill-treated by her mother and stepfather. The child told her
that she was afraid of her
parents. The appellant’s employer
asked her domestic helper to look after the child and to give her
food because she had
to attend to business affairs and would only be
able to ‘search’ for the child’s parents upon her
return. The
appellant’s employer was of the view that an adult
person should accompany the child home. The domestic helper
testified
that she indeed had fed the child and had let her watch
television. The appellant’s employer testified that she had
received
a phone call from her domestic helper later in the day
informing her that the police had arrived with the child’s
mother
to fetch the child.
[12] It is common cause that two police
officers, Cst Seghoto and Insp Smit, arrived at the appellant’s
employer’s house
accompanied by the child’s mother and
grandmother. The child testified that when she had been asked why
she had not gone
home she told the policemen ‘exactly’
what the appellant had told her to say. The appellant was watching
her and she
was afraid to tell them the truth. She told them about
her being abused and neglected at home and how the appellant tried to
help
her. Insp Smit testified that the child told him that she was
afraid to go home. The appellant’s evidence that the child
resisted going home with her mother by holding onto a pole is
corroborated by the evidence of Insp Smit and that of the domestic
help.
[13] The child testified that she
reported to her grandmother that she had pain after they had arrived
home. Her grandmother examined
her and concluded that someone had
had sexual intercourse with her. Her grandmother asked her to tell
her what had happened and
she, although frightened, ended up telling
her grandmother, because she had promised her ‘that she will
keep her safe.’
The child’s evidence on this aspect is
in material respects corroborated by that of her grandmother who
inter alia testified
that the child had complained to her about pain
she was experiencing, about her examination of the child, what the
examination
revealed and that the child had told her that she had
been raped by the appellant under threat of a knife. The evidence of
the
child and that of her grandmother about her grandmother’s
examination of the child and the complaint of sexual abuse that
the
child had made to her grandmother was also corroborated by the
evidence of the child’s mother. The child’s grandmother
thereupon told the child’s mother to take her to a doctor.
[14] The appellant was arrested during
the course of that day. The child was taken to the Ventersdorp
Hospital where, according
to the child, she was referred to the
Potchefstroom Hospital because she was so ‘badly injured’.
She was examined
and received treatment at the Potchefstroom
Hospital. This evidence of the child is also corroborated by that of
her mother.
Dr Joseph Mnisi, a medical doctor who was employed at
the Potchefstroom Hospital, examined the child on 7 November 2005 at
21:30
and he completed a medico-legal examination form (J88). His
examination revealed a three centimeter scratch on the child’s
right cheek, a one centimeter abrasion on her right leg and certain
gynecological injuries that led him to conclude that she was
‘sexually assaulted’ and ‘penetrated vaginally’.
The injuries, in the opinion of Dr Mnisi, could at most
be 72 hours
old at the time when he examined the child.
[15] I am not persuaded that in
convicting the appellant the trial court misdirected itself in any
relevant respect in its assessment
of the evidence. The totality of
the evidence justifies the trial court’s findings and
conclusions that the exculpatory
version of the appellant was not
reasonably possibly true and that the guilt of the appellant was
proved beyond reasonable doubt.
The trial court treated the
complainant’s evidence with caution. There are many features
that show her evidence to be trustworthy
and unquestionably true.
The opinion of Dr Mnisi and his findings noted on the J88 medical
report corroborate her evidence that
she was raped. The statement
which she made to her grandmother shortly after the incident shows
the consistency of her evidence
and serves to rebut any suspicion
that she fabricated her incrimination of the appellant. The learned
regional magistrate’s
favourable finding about the child as a
witness can, on the totality of the evidence, not be faulted.
[16] The trial court correctly rejected
the exculpatory version of the appellant. It is, on a conspectus of
the evidence, inherently
improbable and clearly false. The child
never reported to the appellant, who portrayed himself as the Good
Samaritan and in whom
she immediately and spontaneously confided, or
his wife according to whom the child also confided that she had been
raped very
recently. It can safely be accepted that being threatened
to be killed and being raped were most traumatic for the child and it
is highly improbable that she would not also have confided the sexual
assault upon her in the appellant and later his wife. Apart
from
telling the appellant of her parents’ abuse of alcohol and she
being neglected and abused she, according to the appellant
and his
wife, also confided in them that she had been raped in 2004. And
yet, she did not tell them about the sexual violence
that had just
been committed against her prior to the appellant stopping her in the
thoroughfare.
[17] Furthermore, the medical
examination of the child revealed that she inter alia had tearing of,
bleeding and a yellow discharge
from the vagina. It is improbable
that the child’s gynecological bleeding would not have been
noticed by the appellant or
at least his wife. It is undisputed that
the appellant’s wife told the child the next morning to take a
bath and to wash
her panty. It is common cause that the
appellant’s wife gave the child a different dress to wear
before they went to the
social worker. The child testified that the
appellant’s wife had given her a torn one to wear instead. No
plausible reason
could be proffered by the appellant or his wife why
she instructed the child to wear a different dress. The ineluctable
inference,
therefore, is that the child was instructed to wear a
different dress in order to portray her as a neglected child or to
conceal
evidence of the rape. The appellant or his wife never
returned the dress to the child or to her family and it was also not
handed
to the police.The appellant’s appeal against his
conviction of rape must, in my judgment, accordingly fail.
[18] In sentencing the appellant the
trial court exercised its discretion judicially and the sentence of
imprisonment for 25 years
is not inappropriate and does not induce a
sense of shock. The relevant factors and circumstances were properly
considered and
taken into account by the trial court. The rape of a
ten year old child is dreadful. It is an enormous and heinous crime.
This
is an aggravating circumstance of substance and the commission
of this type of offence against an innocent ten year old child
undoubtedly
demands the imposition of long term imprisonment. The
sentence imposed upon the appellant was proportional to the offence.
The
physical injuries were severe and serious for a child of ten
years old to sustain. It must also be accepted that a child would
not be left unscathed by sexual assault. Interference with the
imposed sentence is in all the circumstances of this case not
warranted.
[19] In the result the following order
is made:
The appeal against the appellant’s
conviction of rape and against the sentence imposed upon him pursuant
to his conviction
is dismissed.
P.A. MEYER
JUDGE OF THE HIGH COURT
Date of hearing: 27 November 2015
Date of judgment: 11 December 2015
Counsel for appellant: RS Matlapeng
Instructed by: Pretoria Justice
Centre
Counsel for respondent: AJ Fourie
Attorneys for respondent: The
Director of Public Prosecutions, Pretoria