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[2019] ZAGPJHC 36
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R M v S (A158/2018) [2019] ZAGPJHC 36 (21 February 2019)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
A 158
/2018
R
J
M                                                                                                                APPELLANT
Versus
THE
STATE                                                                                                   RESPONDENT
JUDGMENT
[1]
The appellant stood
trial on three counts of rape in the Regional Court at Protea,
Soweto. He was legally represented and pleaded
not guilty to the
three charges. He did not give any explanation in terms of
section
115
of the
Criminal Procedure Act 51 of 1977
.
[2]
The appellant was
convicted of two counts of rape in terms of section 3 of the Criminal
Law Amendment Act (Sexual Offences and Related
Matters) 32 of 2007
read with the provisions of section 51(1) of part 1 of schedule 2 of
the
Criminal Law Amendment Act 105 OF 1997
. He was acquitted on count
3.
[3]
The complainant was
10 years old at the time the alleged offences were committed. She is
the appellant’s physically handicapped
daughter and is
epileptic.
[4]
The appellant was
sentenced as follows:-
Count
1 – to life imprisonment; and
Count
2 – to 10 years imprisonment.
The
sentences on count 1 and 2 run concurrently. The effective sentence
is therefore life imprisonment. This is an appeal in terms
of
section
309(1)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
which provides
for an automatic right of appeal in the event the Regional Court
convicts an accused person and sentences that person
to life
imprisonment. Before us is an appeal against conviction and sentence.
BRIEF
OVERVIEW OF THE FACTS
[5]
The complainant is a physically handicapped minor
who was 11 (eleven) years oId at the time of the trial. She is
regarded as mentally
slow.
[6]
It is alleged that during June and September 2010,
the specific dates unknown, the appellant unlawfully and
intentionally committed
an act of sexual penetration with Z M, by
inserting his penis into her vagina. At the time of the incidents the
complainant was
only 10 years old. The appellant is the complainant’s
biological father. It is alleged that both incidents happened at the

appellant’s house. The complainant and the appellant were
sleeping in the same bedroom. The appellant was sleeping on the
bed
and the complainant on a sponge on the floor.
[7]
The first incident happened in the night when the
complainant had finished urinating in the bucket they use for that
purpose. The
appellant instructed complainant not to put her panties
back on and he penetrated the complainant in a standing position. At
the
time of this incident her mother and sister were sleeping in
another bedroom because the appellant and her mother were not on
speaking
terms.
The
second incident happened on the bed when the complainant’s
mother went to buy a cell-phone for complainant’s sister.
[8]
The complainant informed her mother about the
incidents and the mother took her to the clinic where-after they went
to report the
incident to the police who referred them to Doctor V.
[9]
Dr V examined the complainant and found that there
was an injury to her hymen. The doctor concluded that the injury
could only have
been caused through sexual penetration. The doctor
further confirmed the complainant suffered from a sexually
transmitted disease.
[10]
She started experiencing an increase in epileptic
seizures after the rape. Her personality changed because she began to
be very
aggressive. She had a tendency to imitate sexual movements to
men visiting her parental home.
STATE
WITNESSES
[11]
The state called, in addition to the complainant,
two further witnesses, being the complainant’s mother and Dr V.
The complainant’s
mother testified that the complainant had
informed her of the two rape incidents. The mother also testified
that the complainant’s
sister had raised doubt on whether the
appellant was capable of raping the complainant and had suggested
that the complainant be
taken to the clinic for examination. The
mother did so where-after they went to report the incident to the
police who referred
them to a doctor.
[12]
Dr V examined the complainant and found that there
was an injury to the complainant’s hymen. The doctor concluded
that the
injury could only have been caused through sexual
penetration.
APPELLANT’S
TESTIMONY
[13]
The appellant testified in his own defence. The
appellant’s defence was that of a total denial.
GROUNDS
OF APPEAL
[14]
It was submitted that the trial court had erred in
finding that the State had proved its case beyond reasonable doubt
and had not
applied the required standard of proof; that the trial
court had misdirected itself in accepting that the State witness’
evidence was satisfactory despite discrepancies and contradictions
and that the trial court had erred in finding that the appellant’s

version of the two incidents in June 2010 and 26 September 2010
respectively, were not reasonably possibly true.
[15]
The appellant further submitted that the
complainant had been told what to say and that he did not know
anything concerning the
allegations. He testified that he had never
raped the complainant. The appellant testified that he was diagnosed
with HIV and has
never told anybody including the mother of the
complainant.
[16]
Counsel for the appellant argued that:- “
The most crucial aspect of this case with respect is based on the
following:- (Q)
The accused will deny ever raping you. (A) I am not
disputing that”. This honest answer, so the argument ran,
completely
destroyed the State’s case against the appellant.
[17]
I don’t agree. Such construction of the
evidence is wrong because what the complainant was simply saying, in
the quoted portion,
was that she cannot dispute that the appellant
was going to deny that he had raped her. Not that such denial was
factually accurate.
STATE’S
CONTENTION
[18]
It is argued for the state that the state proved
the charges against the accused beyond reasonable doubt. It was
submitted that
the state witnesses were credible and that even if
there were inconsistencies, those were not material. It was argued
that the
appellant’s evidence was full of improbabilities.
ISSUES
[19]
The issues which fall for determination are:-
(i)
whether the state has proved beyond
reasonable doubt that the appellant
was the
person who raped the complainant.
(ii)
Whether the trial court misdirected itself
in accepting that the State witnesses’ evidence was
satisfactory despite discrepancies
and contradictions;
(iii)
Whether the trial court erred in finding
that appellants version of the two incidents in June 2010 and
September 2010 respectively
were not reasonably possibly true.
ASSESSMENT OF THE
EVIDENCE
[20]
The state’s evidence hinges upon the
complainant who is said to be slow in mind, is physically disabled,
and who suffers from
both epilepsy and cerebral palsy. A psychologist
confirmed that the complainant is competent to testify as long as the
court is
patient with her and follows the procedure she recommended.
The defence did not challenge the complainant’s competence to

testify. The complainant is a single witness in respect of who, how
and what caused the injury to her hymen.  She is the only

witness who can lead evidence to prove who raped her.
IDENTIFICATION
[21]
The complainant testified that the reason why she
was in court was because her father had raped her. She mentioned her
father’s
name as K. She described rape as when someone takes
you into the blankets, gets on top of you, the bed starts moving, the
people
get sweat and thereafter they get dressed.  She was also
demonstrating with side to side body movements.
[22]
The first incident happened in June in the night
when the complainant had finished urinating in the bucket they use
for that purpose.
The complainant saw something that looked like a
ghost. She was about to put her panties on and it was at that time
that the appellant
said the complainant must not put her panties back
on. It was at that time that the complainant realised the ghost-like
figure
was her father.
[23]
She could see her father because the lights of the
outer rooms illuminated the bedroom. This fact was not disputed by
the appellant.
CONSISTENCY
[24]
The complainant told her mother that her father
had raped her. They went to the police station to report the rape
incidents.
RAPE
[25]
The complainant was
10 (ten) years old at the time of the rape incidents.
[26]
The appellant bent his hips forwards and
backwards and was caressing her. She said her father was naked. The
complainant felt pain
and she saw a spot of blood on the front part.
She saw her father’s penis when the appellant was making front
and backwards
movements. The complainant testified that her father
was moving her with his penis. The complainant pointed that the
appellant’s
penis was in her vagina.  The appellant
penetrated the complainant in a standing position. She also testified
that it took
a long time and the appellant told her to go back to
bed. She did not touch her vagina and she slept.
[27]
The second rape incident happened on the bed when
the complainant’s mother went to town to buy a cell-phone for
complainant’s
sister. The appellant locked her in the bedroom,
told her to undress and opened the blankets. Appellant said she must
lie facing
upwards. Appellant climbed on top of her. He was naked at
that time. Then the bed shook. The complainant said there was a
discharge
that looked like mucus that came out of the appellant’s
penis. She says the appellant was moving his penis inside her vagina

while on top of her. She was feeling pain. The required sexual
penetration has therefore been established.
[28]
In
S v
AM
[1]
the physical and emotional condition of the victim some six hours
after the incident and as described by the aunt to whom the victim

had reported the rape, was also treated as corroboration of the
victim’s evidence that her stepfather had raped her.
Dr
V examined the complainant and found that there was injury to the
complainant’s hymen. The doctor concluded that the injury
could
only have been caused through sexual penetration. The doctor further
confirmed the complainant suffered from a sexually transmitted

disease.
[29]
The
complainant informed her mother about the incidents and the mother
took her to the clinic.
This clearly proves that the complainant is consistent and she is a
credible witness. In
S
v Gentle
[2]
Cloete JA (Farlam and Ponnan JJA concurring) refused to treat as
corroboration the alleged victim’s complaint made to her

sister-in-law, who had arrived on the scene when the victim was
without her panties and in what appeared to be an injured state.
At
[19] it was said that the complaint ‘is not corroboration’
and only proves consistency: ‘It is relevant solely
to her
credibility. The complaint cannot be used as creating a probability
in favour of the State case.
COMPLAINANT’S
MOTHER’S EVIDENCE
[30]
The complainant’s mother’s evidence
does not allege any penetration by the appellant and therefore does
not assist much
in the rape charge faced by the appellant.
DOCTOR’S
EVIDENCE
[31]
The undisputed evidence of Dr V is that there was
an injury to the hymen. That constitutes clear corroboration of the
testimony
by the complainant that a penis penetrated her. The penis
is the cause of the injury to her hymen. Dr V is qualified to make
such
a finding and the evidence has not been gainsaid.
INCONSISTENCIES
[33]
Evidence was led by the mother that the
complainant forgets dates. Therefore, the exact time at which these
incidents occurred is
not
,
in the context of this case, material.
DEFENCE
[34]
MOTIVE
The appellant’s
evidence that the complainant’s mother had a motive to lay
false criminal charges over a dispute for
a house is improbable
because the complainant’s mother has her own house and
appellant knows that fact. Furthermore, the
doubt (about the
appellant having raped the complainant) raised by the complainant’s
sister with her mother clearly indicates
that there was no motive to
lay false criminal charges against the appellant.
CONCLUSION
[35]
The onus rests on the
State to prove all of the elements of the offence of rape. In this
case the state had to prove sexual penetration
of the complainant.
[36]
The State has successfully proven the identity of
the appellant and that he is the person who raped the complainant.
The complainant’s
testimony is that she has seen her father’s
penis. The appellant is the complainant’s father so she knows
him very
well and even refers to him by his first name (K). The
complainant is able to identify the appellant as the person who raped
her
on two different occasions.
[37]
The Doctor’s findings that there was an
insult to the hymen which is consistent with sexual intercourse not
only corroborates
the complainant’s testimony that there was
penetration, but also that she felt pain. The complainant was
infected with a
sexually transmitted disease. Such factors are
clearly proven beyond reasonable doubt.
[38]
Counsel who appeared for the appellant, never disputed that the acts
of sexual penetration testified to by the complainant had
been
established by the State. The fact that sexual penetration was not
cross-examined means that the complainant’s version
in that
regard stands.
In
the case of
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[3]
the court made it clear “that the institution of
cross-examination not only constitutes a right, it also imposes
certain
obligations.  As a general rule it is essential, when it
is intended to suggest that a witness is not speaking the truth on
a
particular point, to direct the witness’s attention to the fact
by questions put in cross-examination showing that the
imputation is
intended to be made and to afford the witness an opportunity, while
still in the witness box, of giving any explanation
open to the
witness and of defending his or her character. If a point in dispute
is left unchallenged in cross-examination, the
party calling the
witness is entitled to assume that the unchallenged witness’s
testimony is accepted as correct”.
Failure to cross- examine on
the above facts is acknowledged by Counsel for the appellant who
alleges that the appellant “was
not, with respect not properly
represented”.
[39]
Counsel for the
appellant was unable to point to any misdirection in the trial
court’s consideration of the facts. No misdirection
is
indicated in the conclusion that the State had indeed proved that
there was sexual penetration on the part of the complainant’s

vagina.
[40]
In the light of the medical evidence and the appellant’s
Counsel’s failure to cross-examine the complainant on the

appellant’s penis penetrating the complainant’s vagina,
the trial court had no choice but to convict the appellant.
The
trial court was entitled to convict.  In the case of
Rex
v Difford
[4]
it was held that for the court to be entitled to convict, it must be
satisfied that not only is the accused explanation improbable
but it
must be false beyond any reasonable doubt. The appellants version is
improbable and false beyond reasonable doubt.
[41]
Having regard to the totality of the
evidence, the inconsistencies in the testimony of the complainant,
the evidence led by the
appellant and his lack of disputing the
essential elements of the offence, I confirm that the State has
proved beyond reasonable
doubt that the appellant is guilty of the
offences of rape in respect of counts 1 and 2.
[42]
The trial court was correct in finding that the
identity of the appellant was proven and that the appellant is the
person who penetrated
the complainant with his penis.
AD
SENTENCE
[43]
It
is now established that in passing sentence, the trial court must
consider the personal circumstances of the accused, the interests
of
society and the seriousness of the crime.
[5]
[44]
The trial court considered the fact that the appellant was 49 years
old. He is mentally healthy. He was gainfully employed and
later
became self-employed as a panel-beater. He was taking care of his
other children. At the time of the incidents he was working
as a
painter and was earning enough money to take care of his family. He
was brought up in a positive upbringing. He was never
exposed to any
violence. He had to drop out of school in standard 9 due to financial
constraints.
[45]
The trial court further considered that the appellant was aware that
it was illegal and punishable by law to rape someone. He tested
HIV
positive in 2009, that is one year before the two rape incidents. He
did not disclose his status to anyone including the complainant’s

mother. He shows no sign of remorse. The rape incident occurred more
than once. The triial court considered the seriousness of
the offence
of rape an the fact that the complainant was only ten years old when
the rapes occurred. It also correctly considered
the mental state of
the complainant and the
sequelae
of the rape incidents.
Amongst others, it considered the fact that the complainant was
infected with a sexually transmitted decease,
that she began to
suffer more epileptic fits and that she suffered from recurring
nightmares. The court also had regard to the
prevalence of the
offence of rape in the community of Soweto, the fact that the
appellant abused the trust the complainant had
in him and the fact
that the complainant is his daughter.
The
complainant started being very aggressive. She started imitating
sexual movements to men who visited her parental home.
[46]
In balancing the above factors, the trial court concluded that there
were no substantial and compelling circumstances on the part
of the
appellant that warrant a deviation from the prescribed minimum
sentence and imposed a sentence of life imprisonment on count
1. The
trial court despite believing that a term of direct imprisonment is
appropriate in respect of count 2 only imposed a sentence
of 10 years
and ordered that the 10 years run concurrently with the life
imprisonment imposed on count 1.
[47]
As regards the period spent in prison before sentencing it must be
recalled that any sentence contemplated in
section 51
of the
amendment act shall be calculated from the date of sentence.
[6]
In
the case of
S
v S v Radebe
[7]
the court held
that the pre-sentence period in detention is only one of the factors
that should be taken into account “in
determining whether the
effective period of imprisonment to be imposed is justified: whether
it is proportionate to the crime committed.
Such an approach would
take into account the conditions affecting the accused in detention
and the reason for a prolonged period
of detention. The test is not
whether on its own that period of detention constitutes a substantial
or compelling circumstance,
but whether the effective sentence
proposed is proportionate to the crime or crimes committed: whether
the sentence in all the
circumstances, including the period spent in
detention prior to conviction and sentencing, is a just one” .
[48]
There
is no indication that, in the imposition of the sentences on the
appellant, the trial court exercised it’s discretion

improperly. In the case of
S
v Matlala
[8]
it
was held that in an appeal against sentence the test is whether the
trial court in imposing it exercised its discretion properly
or not.
[49]
There is also no
indication that a
disparity
exists between the sentence
imposed
by 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.
[50]
In
the case of
S
v Malgas
[9]
per
Marais JA restated the principle and said
“
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 be to 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’
[51]
It was argued that the
appellant’s personal circumstances and other factors mentioned,
constituted substantial and compelling
factors justifying a departure
from the prescribed minimum sentence.
[52]
The fact that the
appellant has other children to support cannot be regarded as
justifying a departure from the prescribed minimum
sentences.
[53]
In
the case of
S
v Malgas
[10]
it was held that
“t
he
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 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.”
[54]
The above sentences are appropriate for the crimes committed
and only lead me to conclude that the Learned Magistrate exercised
his discretion judiciously and properly.
I
see no reason to tamper with the sentence imposed by the trial court.
[55]
In the result, the appeal
against conviction and sentence must fail.
I
confirm the sentence imposed by the trial court.
ORDER
The
appeal against the convictions and sentences imposed is dismissed.
______________________________
NE RAMAPUPUTLA
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
I agree
————————————
I OPPERMAN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
APPEARANCES
Appellant’s
Counsel           :
Mr B.P Ndaba
Instructed
by

: BP Ndaba Inc
Respondent’s
Counsel       : Adv P. Marasela
Instructed
by

: Director of Public Prosecution
Date of
hearing
: 27 November
2018
Date of
judgment
: 21 February 2019
[1]
2014
(1) SACR 48
(FB) (at [6]).
[2]
2005 (1) SACR 420 (SCA)
[3]
2000
(1) SA 1
(CC) at 5.
[4]
1937
AD 370
at 373
[5]
Zinn
v The State
1969
(2) SA 537 (A)
[6]
Section
51(4).
[7]
2013 (2) SACR 165
(SCA) at paras [13] and [14]
[8]
2003
(1) SACR 80
(SCA)
at 83d-e.
[9]
2001(1)
SACR 469(SCA) at 478D.
[10]
Supra.