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[2017] ZAGPJHC 36
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Rafutho v S (A288/2016) [2017] ZAGPJHC 36 (27 February 2017)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A288/2016
Reportable:
NO
Of
interest to other judges: NO
Revised.
27
February 2017
In
the matter between:
JOHN
TEBOGO
RAFUTHO
APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
RATSHIBVUMO AJ:
1.
This is an appeal noted
in terms of sec 309 (1) (a) of Act 51 of 1977 (the Criminal Procedure
Act. From the heads of argument filed
together with the notice of set
down, Mr. Rafutho, the appellant was appealing only against the
sentence of life imprisonment imposed
by the Regional Court in
Johannesburg. However, on the date of the hearing, his counsel
indicated that he would also appeal against
the conviction. He did
not require more time since the basis of the appeal were very generic
and simple. Counsel for the State
did not oppose this request. We
allowed counsel for the appellant to present his argument in
appealing against the conviction since
sec 309 (1) (a) of the
Criminal Procedure Act does not require of the appellant to apply for
leave to appeal from the trial court.
[1]
2.
The appellant was
charged with a crime of contravening sec 3 of Act 32 of 2007 (rape),
read with the provisions of sec 51(1) of
Act 105 of 1997 (the
Criminal Law Amendment Act). He pleaded not guilty. He was however
found guilty as charged following a trial.
The Criminal Law Amendment
Act was applicable in that the victim was 10 years old at the time
she was raped (she was born on […]
January 2001) and this
happened on several occasions.
3.
Facts that led to the
conviction and eventually the sentence can be set out briefly as
follows. The appellant came from the province
of Free State to
Gauteng in search of employment in 2010. He was accommodated in a
house in Crosby Slovo Park that belonged to
the victim’s
grandmother who happened to be a sister to his grandfather. The
appellant was allocated his own room while the
victim shared a room
with the grandparents in the same house. The victim’s mother
stayed in the same area but she did not
stay with them. In October
2011 the victim’s mother took the child to the clinic because
she had a rash on her private parts.
It was clinically found that she
was sexually violated. It was at that stage that the appellant was
uncovered as the culprit.
4.
According to the
victim, the appellant had sexual intercourse with her on three
different occasions in their grandmother’s
house. The first
time he did it, she and her grandparents were sleeping in one room at
night
,
when the appellant walked in and picked her up and took her to his
room where he put her on the bed and raped her. On one occasion
she
had just arrived from school and found him alone in the house.
He took her to his room and raped her. The last occasion
was when she
was preparing food in the kitchen
,
when he summoned her to his bedroom and raped her. On all these
occasions she was threatened with death if she was to tell
what
happened. Although the appellant disputed the version by the victim,
the court accepted it and convicted him.
5.
It was submitted on
appellant’s behalf that the trial court erred in convicting him
because identity was not proved beyond
a reasonable doubt since the
victim could not describe the culprit when she gave evidence. The
argument goes on to imply that given
this failure and the victim’s
tender age, there could be credence in a suggestion that there was an
ulterior motive in laying
charges against the appellant.
6.
It is trite law that a
court of appeal will not disturb the factual finding of a trial court
unless the latter had committed misdirection.
An appeal court will
only reverse it where it is convinced that it is wrong. In such a
case, if the appeal court is merely left
in doubt as to the
correctness of the conclusion, then it will uphold it.
[2]
The conviction of the appellant is challenged on very generic
submissions. The approach by courts in circumstances where identity
is disputed is guided by the principles laid down in
S
v Mthethwa
[3]
where Holmes JA
held,
“
[B]ecause of the fallibility of human
observation, evidence of identification is approached by the Courts
with some caution. It
is not enough for the identifying witness to be
honest: the reliability of his observation must also be tested. This
depends on
various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity for
observation, both
as to time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility;
the accused's face, voice, build, gait, and dress;
the result of identification parades, if any; and, of course, the
evidence by
or on behalf of the accused. The list is not exhaustive.
These factors, or such of them as are applicable in a particular
case,
are not individually decisive, but must be weighed one against
the other, in the light of the totality of the evidence, and the
probabilities; see cases such as
R v
Masemang
,
1950 (2) SA 488
(AD); R.
v Dladla and Others,
1962 (1) SA 307
(AD) at p. 310C;
S
v Mehlape
,
1963 (2) SA 29
(AD).”
7.
The identity of the
person who raped the child
in
casu
is being
challenged because the victim, who testified through closed circuit
TV and with the assistance of an intermediary, indicated
that she
could not give a description of the suspect when asked to. This
argument seems to turn a blind eye to the fact that giving
a
description of a person is such a difficult task that even adults
would resort to testifying on heights, complexion, haircuts
and
clothes that the suspect wore on a particular day, aspects that do
not help much. This must be an even more difficult task
for a child
under 12 years old; such as the victim in this case was at the time
she gave evidence.
8.
The learned magistrate
in analysing the evidence did take all these aspects into
consideration. It is common cause that appellant
resided with the
victim in the same yard. The victim’s mother testified on how
she was related to the appellant and her evidence
on that aspect was
not challenged. The failure to give any description of the suspect
did not mean that she was not raped or she
did not reside with the
appellant. She failed to give a description of a person that resided
with her in the same house irrespective
of whether he committed any
crime or not. She named the suspect as Tebogo and at the end of her
evidence she was able to point
the appellant in the dock as Tebogo
and a man who resided in the same yard as her at the time of the
incident. Although the first
time she was raped it was at night, on
two other occasions she was raped during the day. Failure on her part
to give a description
of the suspect can only be attributed to the
difficulty in giving a description of a person especially to a child,
and how the
question is phrased. I therefore do not find any
misdirection on the finding of the trial court in this regard.
9.
Before I consider the
arguments advanced by the appellant in respect of the sentence, it is
useful to remind ourselves of the proper
approach by the appeal court
in matters where the sentence imposed by the trial court is
challenged. The approach should be guided
by the collective
principles from various decisions of the High Courts and the SCA. In
S v Salzwedel and
Others
[4]
,
the SCA held per Mohamed CJ that An appeal Court is entitled to
interfere with a sentence imposed by a trial court in a case where
the sentence is 'disturbingly inappropriate', or totally out of
proportion to the gravity or magnitude of the offence, or
sufficiently
disparate, or vitiated by misdirections of a nature
which shows that the trial court did not exercise its discretion
reasonably.
10.
In
S
v Malgas
[5]
,
the same court laid further guidelines in how to approach the
substantial and compelling circumstances requirement for purposes
of
deviating from the prescribed sentences. It held,
“
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. The specified
sentences were not to be departed
from lightly and for flimsy reasons which could not withstand
scrutiny. Speculative hypotheses
favourable to the offender, maudlin
sympathy, aversion to imprisoning first offenders, personal doubts as
to the efficacy of the
policy implicit in the amending legislation,
and like considerations were equally obviously not intended to
qualify as substantial
and compelling circumstances.”
11.
The learned magistrate
found no substantial and compelling circumstances that justify
imposing a lesser sentence than the mandatory
life imprisonment. The
appeal is in respect of that finding. It was submitted that the court
should have found substantial and
compelling circumstances in that
the appellant was 27 years old at the time the offences were
committed and that because he was
young, he was capable of
rehabilitation. It was submitted further that he was a first
offender, a father of a minor child and that
the victim sustained no
serious injuries.
12.
The role of age or
youthfulness as a mitigating factor was revisited by the SCA in
S
v Matyityi
[6]
,
when a 27 year old man was sentenced following a guilty plea. Ponnan
JA writing for the appeal court held,
“
The question, in the final analysis, is
whether the offender's immaturity, lack of experience, indiscretion
and susceptibility to
being influenced by others reduce his
blameworthiness. Thus, whilst someone under the age of 18 years is to
be regarded as naturally
immature, the same does not hold true for an
adult. In my view a person of 20 years or more must show by
acceptable evidence that
he was immature to such an extent that his
immaturity can operate as a mitigating factor. At the age of 27 the
respondent could
hardly be described as a callow youth. At best for
him, his chronological age was a neutral factor. Nothing in it
served, without
more, to reduce his moral blameworthiness. He chose
not to go into the box, and we have been told nothing about his level
of immaturity
or any other influence that may have been brought to
bear on him, to have caused him to act in the manner in which he did.
13.
The argument that
substantial and compelling circumstances exist because the victim
sustained no injuries ignores the provisions
of sec 51 (3) (aA) which
provides,
“
(aA) When imposing a sentence in respect of
the offence of rape the following shall not constitute substantial
and compelling circumstances
justifying the imposition of a lesser
sentence:
(i) …
(ii) an apparent lack of physical injury to the
complainant;
(iii)…
Although
the courts had in the past relied on apparent lack of injuries as a
reason to deviate from the prescribed sentence, since
the amendment
of the Criminal law Amendment Act, through Act 32 of 2007 (the Sexual
Offences and Related Matters the courts have
moved with the times in
line with the legislative developments.
[7]
14.
In
S
v Moyo
[8]
,
this court dismissed an appeal against life imprisonment imposed on a
40 year old offender who raped a 7 year old child. Opperman
AJ
concluded that the courts have a duty to protect children younger
than 10 years and that it cannot be business as usual when
it comes
to their protection.
[9]
The Criminal Law Amendment Act ordained life imprisonment as the
proper sentence for rape of children under the age of 16. Rape
perpetuated against any other person is punishable with a minimum
sentence of 10 years imprisonment
[10]
unless it is in circumstances where listed in sec 51 (1) of the
Criminal Law Amendment Act where it is also punishable by life
imprisonment.
[11]
15.
While it common
knowledge that nothing of particular importance takes place on the
date a child turns 16, it is acceptable that
the closer the child
gets to losing the title of being a child (turning 16) the courts are
inclined to listen and in deserving
cases, find substantial
circumstances through which a sentence other than life imprisonment
may be imposed.
[12]
When it comes to children whose age is further and younger from 16,
the hearing of the soft approach by the courts gets hardened
by the
fact that it cannot be “business as usual”
[13]
when it comes to the younger children, to the extent that “the
prescribed sentence cannot be departed from lightly or for
flimsy
reasons.”
[14]
16.
It is for these reasons
that the discretion exercised by the learned magistrate cannot be
faulted. She did not misdirect herself
in any manner and we are not
at liberty to interfere with her findings and the resultant sentence.
I agree with the sentiments
expressed by Majiet JA in
S
v SMM
[15]
to the effect that our country is plainly facing a crisis of epidemic
proportions in respect of rape, particularly of young children.
The
rape statistics induce a sense of shock and disbelief. The
concomitant violence in many rape incidents engenders resentment,
anger and outrage. Government has introduced various programmes to
stem the tide, but the sexual abuse of particularly women and
children continues unabated. The public is rightly outraged by this
rampant scourge. There is consequently increasing pressure
on our
courts to impose harsher sentences primarily, as far as the public is
concerned, to exact retribution and to deter further
criminal
conduct.
17.
In the result I would
make the following order:
1.
Appeal against the
conviction and sentence is dismissed
_____________________
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_______________________
WHG VAN DER LINDE
JUDGE OF THE HIGH COURT
FOR
THE APPELLANT : ADV PHETOE
INSTRUCTED
BY : JOHANNESBURG JUSTICE CENTRE
JOHANNESBURG
FOR
THE RESPONDENT : ADV EN MKHARI
INTRUSCTED
BY : DIRECTOR OF PUBLIC
PROSECUTIONS
JOHANNESBURG
DATE
HEARD : 23 FEBRUARY 2017
JUDGMENT
DELIVERED : 27 FEBRUARY 2017
[1]
S v Chake
2014 (1) SACR 177
(SCA)
[2]
See also
DPP v S
2000 (2) SA 711
(T) &
S v Leve
2011 (1) SACR 87 (ECG).
[3]
1972 (3) SA 766
(A) at 768A-C.
[4]
1999 (2) SACR 586 (SCA)
[5]
2001 (1) SACR 469
(SCA) para 8 & 9.
[6]
2011 (1) SACR 40
(SCA) para 14
[7]
See
S v SMM
2013 (2) SACR 292
(SCA) & S v MDT
2014 (2)
SACR 630
(SCA).
[8]
[2014] JOL 32349 (GJ)
[9]
See
S v Moyo supra
para 34 where Opperman AJ quotes from
S
v Matyityi
,
2011 (1) SACR 40
(SCA) at
46D-E.
[10]
See sec 51 (2) (b) of the Criminal Law Amendment
Act.
[11]
Example of these would be rape where the victim
is raped more than once, or the offender acted as part of a group of
more than
one person in furtherance of common purpose or where the
victim is mentally or physically disabled.
[12]
See
S v Vilakazi
2009 (1) SACR 552
(SCA) where the SCA
found substantial and compelling reasons to impose a sentence other
than life when the child raped was ‘possibly
over15.’
[13]
See
Dube
v The State
(89/16)
[2016] ZASCA 123
(22 September 2016),
S
v DC De Beer
ZAGLD
A283/15
29 June
2016,
[14]
S v Malgas, S v Matyityi & S v Moyo supra
.
[15]
Supra
at para
14.