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[2016] ZAGPJHC 89
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Matshevha v S (A342/2015) [2016] ZAGPJHC 89 (29 April 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A342/2015
DATE:
29 APRIL 2016
In
the matter between:
Matshevha,
Tshimangadzo
.......................................................................................................
Appellant
And
The
State
.................................................................................................................................
Respondent
JUDGMENT
Van
der Linde, J:
Introduction
[1]
This is an appeal against both conviction
and sentence in terms of s.51(1), read with part I of schedule 2, of
the Criminal Law
Amendment Act, 105 of 1997 (“the Act”),
also referred to as the minimum sentencing legislation. The
conviction was
of rape on 16 July 2011 of a victim under the age of
16 years, as envisaged in paragraph (b)(i) of the description of
“
Rape”
in part I of schedule 2 of the Act. In those circumstances s.51 (1)
provides that a court “
shall
sentence”
a person to
imprisonment for life, and that is what has occurred in the regional
court sitting in Roodepoort on 16 May 2014.
The
State case
[2]
The complainant was 11 years old at time of
the rape. The appellant was known to her at the time; they
were, in fact, neighbours.
According to her version, which was
accepted by the magistrate, he had called her over and had asked her
to go buy him cigarettes.
When she got to his house, he closed and
locked the door behind her. He forced her into the room under threat
of her life and that
of her parents, and in the process brandished a
knife and a firearm in aid. He undressed her, put her on the bed,
unzipped his
trousers, and started raping her. He clamped her mouth
shut when she started screaming.
[3]
He only stopped when there was a knock at
the door. He stood up, zipped up his trouser and went to the
door. The complainant
got up and dressed, and also went to the door.
When the appellant open the door, she slipped out. The person at the
door
was her friend [R……’s] mother, Ms [M…….],
who recognised her, and was there to enquire about what
he was doing.
[4]
When the complainant got home she did not
immediately tell her parents what had happened. She was afraid that
they would be killed
if she did, bearing the appellant’s threat
in mind. When her mother spotted her awkward gait the next day, a
Sunday, she
examined her, and saw the injuries to her vagina. This is
when the complainant told her mother that the appellant had raped
her.
The complainant’s father was then involved, and they took
her to the church. On the Monday she went to school, and so too
on
Tuesday and Wednesday.
[5]
On the Thursday she was brought home by the
deputy principal and her teacher who also delivered a letter asking
that her mother
attend school with her. Since she could not do this
on the Friday, the complainant’s mother went to school with her
the next
Monday. After discussion with them, they went to talk to the
Crisis Centre, accompanied by the complainant’s teacher, where
the complainant explained what had happened to a social worker. She
was then referred to a doctor who examined her. This was on
25 July
2011, according to the doctor’s evidence, some 12 days after
the alleged assault. After he had done so, he
advised them to
lay a charge at the police station, and this they did.
[6]
The doctor testified that the complainant
had reported two incidents of sexual intercourse to him, once on 13
July 2011 and once
on 16 July 2011. He testified to four lacerations
to the complainant’s vagina, one of which was extensive and in
the actual
wall of the vagina. He testified that three of the
lacerations were inside the vagina, and he recorded contemporaneously
that there
was thus strong evidence that the complainant’s
vagina had been penetrated beyond the hymen. He opined that the
injuries
he observed were consistent with the complainant’s
version of having been raped. The appellant’s legal
representative,
Mr Nelson, had no questions for the doctor.
The
trial court’s analysis
[7]
The trial court expressly alerted itself to
the dangers of relying on the evidence of a single witness. It
alerted itself also to
the dangers of accepting the evidence of a
small child, and particularly of the potential for lack of judgment
and for imaginativeness.
The court thus approached its assessment of
the evidence of the complainant on the basis that two cautionary
rules reigned; that
pertaining to a single witness, and that
pertaining to a child witness.
[8]
The court informed itself that it should
expressly articulate these warnings; should then examine the evidence
to see whether the
witness’ evidence was clear and satisfactory
in every material respect; should then look for corroboration; and
should, failing
corroboration, look for some feature in the evidence
that would give the implication by a single child witness enough of a
hallmark
of trustworthiness to reduce substantially the risk of a
wrong reliance on her evidence.
[9]
Having so informed itself, the court a quo
then provided a detailed appraisal of the complainant as a witness.
It concluded that
she was a self-composed young girl, who gave her
evidence without hesitation or discomfort and in a calm even-voiced
manner. The
court saw no signs of difficulty in separating fact from
fiction, and found nothing in her version that would cast doubt on
its
accuracy or reliability. The court found corroboration for the
version in the medical evidence and in her awkward gait the day after
the event.
[10]
As regards the appellant, the trial court
found that he had a propensity to fabricate. In particular, when
testifying the appellant
suggested that one Eric was the rapist; but
only did so in cross-examination. This was never put to the State
witnesses, not referred
to in his own evidence in chief. Ultimately
the court a quo rejected his exculpatory evidence as false.
The
approach on appeal
[11]
As
regards the approach of courts of appeal to trial court findings of
fact generally, the Constitutional Court has most recently
in Makate
v Vodacom (Pty) Ltd
[1]
restated the position. Trial courts have advantages that appeal
courts do not have. The former are steeped in the matter;
they
observe witnesses, and are able and required to assess probabilities
as they manifest within the circumstances prevailing,
and as they
apply to the particular witnesses testifying. In the result, unless
the factual findings of the trial court are clearly
wrong, or unless
the trial court will have misdirected itself, those findings are not
to be upset on appeal.
[12]
It is instructive to quote the relevant
portion of the judgment of Jafta, J in Makate:
“
[37]
In these circumstances, interference with the factual findings made
by the trial Court is neither necessary nor justified.
Ordinarily appeal courts in our law are reluctant to interfere with
factual findings made by trial courts, more particularly if
the
factual findings depended upon the credibility of the witnesses who
testified at the trial. In Bitcon, Wessels CJ said:
‘
[T]he
trial judge is not concerned with what is or is not probable when
dealing with abstract business men or normal men, but is
concerned
with what is probable and what is not probable as regards the
particular individuals situated in the particular circumstances
in
which they were.’
[38]
In our system, as in many similar systems of appeal, the cold record
placed before the appeal court does not capture all that
occurred at
the trial. The disadvantage is that the appeal court is denied
the opportunity of observing witnesses testify
and drawing its own
inferences from their demeanour and body language. On the
contrary, this is the advantage enjoyed by
every trial court.
Hence an appeal court must defer to the trial court when it comes to
factual findings. In Powell
& Wife, Lord Wright formulated
the principle thus:
‘
Not
to have seen the witnesses puts appellate judges in a permanent
position of disadvantage as against the trial judges, and, unless
it
can be shown that he has failed to use or has palpably misused his
advantage, the higher court ought not to take the responsibility
of
reversing conclusions so arrived at, merely on the result of their
own comparisons and criticisms of the witnesses and of their
own view
of the probabilities of the case.’ ”
[13]
The
complainant was young, she was a single witness, and the complaint
was of sexual assault, implying the application of what has
been
described as the so-called cautionary rule. None of these features
stood in the way of a conviction. S.208 of the Criminal
Procedure Act
51 of 1977 (“the CPA”) expressly permits a conviction on
the evidence of a single witness, although the
cases have held that
the evidence of single witness must be clear and satisfactory in
every respect.
[2]
[14]
The
application of a cautionary rule in sexual assault cases has received
stringent criticism by the Supreme Court of Appeal.
[3]
That court described the application of this rule in sexual assault
cases as based on an irrational and out-dated perception, unjustly
stereotyping complainants in such cases as particularly unreliable.
[15]
More importantly, in this matter no
misdirection or clearly wrong finding has been illustrated. The
criticism that there was no
immediate raising of the hue and cry, as
was demanded in medieval England, is met by the fear of harm to the
complainant’s
family. The criticism of the delayed report to a
doctor and the police ought to be directed to the complainant’s
parents,
and not her. The criticism that the doctor’s recording
of the complainant’s version did not match her evidence is a
matter that ought to have been taken up with the doctor when he
testified. His recording may simply have been wrong.
[16]
And the criticism that Ms [M……..],
when called by the court as a witness, did not corroborate the detail
of the complainant’s
version (although she did place the
complainant on the scene at the crucial time), really just
underscores the problems inherent
in the court calling a witness when
battle-lines have been drawn clearly. The incentive for giving
evidence that fits both versions,
or helps no version, is known.
[17]
The difficulty that the appellant’s
argument cannot overcome is the complete absence of any incentive on
the part of the complainant
falsely to implicate the appellant. Once
one has set aside the suggestion of fanciful imaginativeness, and
once one has accepted
that a serious rape has been perpetrated, and
once one accepts that falsely implicating the appellant undoubtedly
exposes the complainant
and her parents to real physical danger, then
it becomes very difficult to construct an explanation for falsely
fingering the appellant
and not the mystical Eric.
[18]
We are not able to conclude, in these
circumstances, that the magistrate had committed a misdirection or
was clearly wrong, and
the factual findings of the court a quo must
stand. That implies that the conviction remains.
Sentence
[19]
Sentencing
is really, in the context of the minimum sentencing legislation,
subject to the same approach by a court of appeal. S.51(1),
read
with schedule 2 part I, and paragraph (b)(i) under the
description of “
Rape”
,
of the Act, compels (“
shall
sentence”
)
the imposition of a life sentence. The approach to be followed by
courts with reference to the minimum sentencing legislation
is set
out by the Constitutional Court in S v Dodo:
[4]
“
A
Section 51 has limited but not eliminated the courts' discretion in
imposing sentence in respect of offences referred to in Part
1 of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2).
B
Courts are required to approach the imposition of sentence conscious
that the Legislature has ordained life imprisonment (or the
particular prescribed period of imprisonment) as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the listed crimes in the specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded.
E
The Legislature has however deliberately left it to the courts to
decide whether the circumstances of any particular case call
for a
departure from the prescribed sentence. While the emphasis has
shifted to the objective gravity of the type of crime and
the need
for effective sanctions against it, this does not mean that all other
considerations are to be ignored.
F
All factors (other than those set out in D above) traditionally taken
into account in sentencing (whether or not they diminish
moral guilt)
thus continue to play a role; none is excluded at the outset from
consideration in the sentencing process.
G
The ultimate impact of all the circumstances relevant to sentencing
must be measured against the composite yardstick (''substantial
and
compelling'') and must be such as cumulatively justify a
departure from the standardised response that the Legislature
has
ordained.
H
In applying the statutory provisions, it is inappropriately
constricting to use the concepts developed in dealing with appeals
against sentence as the sole criterion.
I
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
J
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which
the Legislature
has provided.”
[20]
Here the court a quo expressly considered
whether substantial and compelling circumstances were present, but
found none. It was
submitted that there were no physical injuries;
that the evidence was of a poor quality; that here was no DNA
evidence; that the
case was opened 12 days after the crime ad been
committed; that it was astonishing that the lacerations of the
complainant had
not completely healed; and that the court a quo was
in the dark as to whether or not the complainant was a virgin or
sexually active.
[21]
In our view none of these factors
constitute substantial and compelling circumstances, and the trial
court, after considering whether
there were any, rightly found that
there were none. Accordingly the sentence imposed by the court a quo
must also remain.
[22]
In consequence the following order is made:
The
appeal against both conviction and sentence is dismissed.
WHG van der Linde
Judge, High Court
Johannesburg
I
agree.
HW Sibuyi
Acting Judge,
High Court
Johannesburg
For the
appellant: Adv. L.S. Nkuna
Instructed by:
Legal Aid South Africa
8
th
Floor, Zurich House
70 Fox Street
Johannesburg
Tel:
011870 1480
For the
respondent: Adv. R. Ndou
Instructed by:
Office of the Director of Public Prosecutions
Gauteng Local
Division
1
st
Floor Innes Chambers
51
Pritchard Street
Johannesburg
Tel:
011220 4269
Date
argued: 21 April, 2016
Date
of judgment: 29 April, 2016
[1]
[2016]
ZACC 13
at
[37]
to [41], in a judgment handed down on 26 April 2016.
[2]
S
v Sauls and Others,
1981 (3) SACR 172
(A) at 173.
[3]
S
v Jackson,
1998 (1) SACR 470
per Olivier, JA at 476 e – f.
[4]
2001(3)
SA 382 (CC) at [11], adopting S v Malgas,
2001 (2) SA 1222
(SCA).