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[2018] ZAGPJHC 465
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M v S (A248/2017) [2018] ZAGPJHC 465 (7 June 2018)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number:
A248/2017
Not
reportable
Not
of interest to other judges
7/6/2018
In
the matter between:
M
B
Appellant
And
THE
STATE
Respondent
JUDGMENT
FISHER
J, (CAMBANIS AJ CONCURRING):
INTRODUCTION
[1]
This case involves the rape by
a father of his teenage daughter. The raping took place
repeatedly and regularly over a period
of approximately 3 months and
resulted in her pregnancy.
[2]
The appellant was charged in
the Germiston Regional Court with:
count
1
- rape read with
section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
,
alternatively, incest;
count
2-
the display of
pornography to a minor and;
count
3-
the sexual grooming of a
child.
[3]
The appellant was legally
represented throughout. He pleaded not guilty to all counts on
25 June 2015. He was convicted on
27 March 2017 of rape (count 1) and
of sexual grooming (count 3). He was acquitted of the alternative
charge of incest and count
2. The rape conviction was subject to
section 51(1)
in that it involved the repeated rape of the
complainant, and thus to a minimum discretionary sentence of
imprisonment for life.
[4]
In respect of the rape
conviction the appellant was sentenced to life imprisonment and
in respect of the charge of sexual
grooming he was sentenced to 5
years imprisonment. As a matter of law, these charges run
concurrently.
[5]
The appeal was automatic as
provided for in
section 309B(1)
of the
Criminal Procedure Act 51 of
1977
and is in respect of both conviction and sentence.
DISCUSSION
ON EVIDENCE
[6]
The complainant was a single
witness to her rape. The appellant did not testify. It appears from
the complainant’s evidence
that she and the appellant resided
together in a one bedroom dwelling which was barely large enough to
accommodate a bed and a
television set. The dwelling is referred to
in the evidence of the complainant as "a shack".
[7]
The complainant is the
biological daughter of the appellant. She was the child of a
relationship which had broken down during her
early childhood. Her
parents separated and she stayed with her mother in Swaziland for her
early childhood. When she was approximately
10 years of age and in
grade 5, she went to stay with the appellant. She initially
resided in a separate dwelling on the
property where the shack of the
appellant was situated. She resided with the landlady of the property
and she had her own
bedroom. She testified that, at a
stage, the appellant insisted she move into his shack and share it
with him. The landlady
was, according to the complainant,
disconcerted by the fact that the complainant was moving in with her
father and she ( the landlady)
expressed that it was inappropriate
that she share a bed with her father.
[8]
He justified the new living
arrangements to the complainant by stating that the landlady was "a
witch” who wished to
do her harm. This is but one indication in
the complainant's evidence of the use by her father of supernatural
elements to seek
to manipulate her. The landlady and the
complainant were close but became estranged because of the appellant.
The complainant’s
evidence shows a tendency on the part of the
appellant to alienate the complainant from the community and from
people to whom
she was close. She was told by him not to
associate with friends and that “nobody liked her”. That
he sought to create
in her the impression that she was alone save for
his "protection", is a recurring theme which emerges from
the complainant's
testimony.
[9]
Three woman, referred to by the
complainant as Auntie S, Aunty P, and Auntie N were figures who had
featured in her life and were
seen as family by her. They lived
nearby. She had, true to form, been told by the appellant that
she may also not associate
with them. They emerge from her evidence
as women who were are able to assist her and convey some sense of
security to her.
She ultimately turned to them in her
predicament.
[10]
The evidence of the complainant
(who was 18 at the time of her testimony) was cogent and compelling.
The offences in question occurred
when she was 16 and 17 years of
age. The appellant brought pornographic DVDs into the shack and
subjected her to such material.
She resisted watching the material,
however he insisted that she watch it. It was during the watching of
this pornographic material
that he first raped her. This occurred in
January 2013. She was 16 at the time. She turned 17 on 25 February
2013. She was a virgin
when he raped her.
[11]
This was the beginning of a
regular pattern of abuse involving the appellant forcing or coercing
the complainant into having sexual
intercourse with him. She
testified that this occured on a regular basis between January to
March 2013.
[12]
The appellant was in a position
of power both physically and psychologically in respect of the
complaint. He left her in no
doubt that she was at his mercy in
that she had nowhere to turn and nowhere to live should she deny him
his wishes. She was afraid
of him also because he hit her.
[13]
The appellant was reckless in
his disregard for his daughter's well-being. When she became
pregnant, he again resorted to the supernatural.
He went as far as to
tell her that there was a creature growing inside her which had been
invoked by her mother putting an evil
spell upon her. This suggests
an intention to manipulate and control the complainant and to hide
the pregnancy in a bid to protect
himself. He continued with this
approach in seeking her co-operation to terminate the pregnancy and
to this end approached at least
3 people in a bid to obtain a
termination of the pregnancy. It appears that, given the
advanced stage of the pregnancy by
the time he got her to these
people, he was foiled in these endeavours. That she was put through a
frightening ordeal in being
subjected to this process, is without
doubt. I must add that the appellant is relatively well educated
having obtained matric.
[14]
The “aunts”
referred to above ultimately stepped in and established themselves as
her protectors and advisors.
It was them that involved the
authorities which led ineluctably to the arrest and prosecution of
the appellant. Had they not intervened,
one shudders to think what
her fate would have been. The appellant certainly tried very hard to
alienate her from them.
[15]
The baby, a boy, was born and,
because of the denial by the appellant of the rapes, he was subjected
to paternity testing, which
revealed conclusively and positively the
paternity of the appellant. The evidence of the DNA testing was led
at the trial and,
notwithstanding there being no basis for any attack
thereon, the appellant assisted in obtaining a second DNA test. This
second
test confirmed the results of the initial test. The appellant
chose not to testify in his defence. He however continued, in the
face of all the evidence, to maintain his innocence.
[16]
The evidence of the complainant
and the corroborating evidence of the DNA results show a very high
probability of guilt on the part
of the appellant. This
notwithstanding, he has continued, from the outset, in his endeavours
to exculpate himself, to deny his
guilt, and to contrive to protect
himself at the expense of his daughter and her unborn child. He has
put her through the ordeal
of a pregnancy without support and which
was fraught with fear and confusion. She was subjected to the
scrutiny of schoolmates
and others in her growing condition as she
had to attend school and go out into the community. She had no
emotional or medical
support and the appellant sought to
alienate her from any possible avenues of comfort. He subjected her
to people whose questionable
services he engaged in a bid to
rid himself of the pregnancy. All the while he appears to have given
little thought to the predicament
in which he had placed his daughter
or for the well-being of the child.
[17]
Even once arrested and charged,
he denied his guilt to the very end and he continues in this vein. He
thus subjected his daughter
to the ordeal of a trial which, to her
credit, she endured with dignity and forbearance.
CONVICTION
[18]
As to the conviction, there can
be no doubt that the Magistrate dealt properly with the evidence and
the approach and conclusion
reached as to the guilt of the appellant
cannot be faulted.
SENTENCE
[19]
As to sentence, the record
shows a marked disregard on the part of the appellant for the
wellbeing of the complainant. His role
should have been to protect
and nurture his daughter. Instead he became her rapist, violator,
and tormentor. In the aftermath
of her pregnancy, he continued to
protect his own position at the expense of the complainant. His
actions were calculated
and deliberate. The evidence shows that he
held himself out in the community to be a religious person. His
reputation was important
to him. He was said to carry a Bible and
engage in scripture readings to and teachings of others. He is
clearly a person who is
duplicitous and hypocritical. He has
continued to attempt to maintain his innocence in the face of
overwhelming evidence
and thus to state that his daughter is falsely
accusing him of heinous crimes. He has abused his position as father
and protector.
He has made no amends.
[20]
All these aspect are
aggravating and the Magistrate raised them as such in a balanced and
sensitive weighing up of the various personal
and potentially
mitigating circumstances put forward by the appellant. The
Magistrate took into account the details in and
the views expressed
by the drawers of the pre -sentencing and victim impact reports.
The appellant was 48 years old at the
time of the sentencing. He was
brought up almost exclusively by his mother, as his father died when
he was only 5 years of age.
He attained matric and, at the time of
the offences he was employed at a salary of between R 2 400 and
R 4 000 per month
depending on hours worked. He was a first
offender and he had spent approximately 4 years in prison awaiting
trial. All these factors
were taken into account. On the latter
concern, it appears from the record that a considerable
proportion of the time
spent awaiting trial was due to the appellant
making application for postponement which related, in part, to his
obtaining further
DNA testing and the termination of the mandate of
his attorney.
[21]
The manner in which the
evidence and the circumstances of the appellant were considered in
relation to the applicable legal principles
cannot be faulted. The
appellant was unable to show any circumstances which could possibly
motivate a lesser sentence than the
minimum prescribed. There is thus
no basis for setting aside the sentences imposed.
[22]
In the circumstances I make the
following order:
1.
The appeal against conviction
is dismissed.
2.
The appeal against sentence is
dismissed.
________________________________________
FISHER
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree,
________________________________________
CAMBANIS AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Heard
on: 24 May 2018
Delivered
on: _____________ 2018.
Counsel
for Appellant: Adv. S Mncwango.
Instructed
by: Legal-aid South Africa
Counsel
for the Respondent: Adv. P Mpekana.
Instructed
by: NDPP