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[2020] ZAGPJHC 63
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F T v S (A137/2019) [2020] ZAGPJHC 63 (25 February 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A137/2019
In
the matter between:
T,
F
Appellant
and
THE
STATE
Respondent
JUDGMENT
WEINER
J
Introduction
[1]
The appellant was charged with the
contravention of s 3 read with
s 1
,
56
(1),
57
,
58
,
59
,
60
,
61
and
68
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, read with s 256, 257 and 281 of the
Criminal Procedure Act 51 of 1977 (the ‘CPA’) –
rape – read with
the provisions of
s 51
of the
Criminal
Law Amendment Act 105 of 1997
, as amended by the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
.
[2]
There is no dispute that the charge
sheet referred to the provisions of
s 51(1)(
a
)
in
Part I
of Schedule II of Act 105 of 1997 in respect of the minimum
sentence applicable, being life imprisonment. The charge sheet also
indicated that such provisions were applicable because the
complainant was a minor child, six years old at the time.
[3]
The appellant pleaded not guilty, but
was convicted on 18
October 2018.
On 8 January 2019 he was sentenced to life imprisonment. An
appeal is automatic since he was convicted and sentenced
to life
imprisonment by the Regional Magistrates’ Court. He appeals
against both conviction and sentence.
CONVICTION
[4]
It
is trite that the onus which rests on the state in criminal cases is
to prove the guilt of an accused beyond reasonable doubt,
but not
beyond all shadow of a doubt. A court does not have to rely upon
absolute certainty, but merely upon justifiable and reasonable
certainty.
[1]
[5]
The
conviction of the accused was based on the factual findings of the
trial court. In
Mkhize
v S
,
[2]
Mocumie AJA held:
‘
The
approach to be adopted by a court of appeal when it deals with the
factual findings of a trial court is trite. A court of appeal
will
not disturb the factual findings of a trial court unless the latter
had committed a material misdirection. Where there has
been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct. The 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. This court in
S
v Naidoo
&
others
[3]
reiterated this principle as follows:
“
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.”’
[6]
The evidence against the appellant was
provided by the mother of the complainant, M (Ms M) and the
complainant. In addition,
the defence made a formal admission and
admitted the contents of the J88 medical report compiled by Dr
Nkondo, who found that the
complainant’s vaginal injuries were
consistent with blunt force injury. The appellant thus admitted that
sexual penetration
had taken place. What was in issue was the
identity of the perpetrator.
[7]
Warrant Officer Mnisi compiled a DNA
report and statement in terms of s 212(4)(
a
)
of the CPA. This was also admitted by the appellant. The appellant’s
DNA was found on the panties of the complainant. In
this regard, the
appellant stated that he was surprised at this finding. His
explanation was that the DNA was positive because
the complainant was
his child and they accordingly share the same DNA. This explanation
is scientifically unsustainable and rejected
as false.
[8]
Ms M testified that the complainant was six years old at the
time of this incident. She and the appellant had been in a
relationship. The appellant was the father of the complainant. They
had broken up when the complainant was two years old. They
all stay
in Munsieville. The appellant stays across the road from the
complainant and Ms M. She and the appellant had an arrangement
that the complainant would stay with the appellant over the weekends.
On 14 October 2017, the complainant came back from visiting
the
appellant. She had been there from Friday, 12 October 2017. When the
complainant returned she complained that she was in pain.
Ms M
testified that the complainant was crying and shivering. The
complainant reported that the appellant had ‘done
naughty
things to her’. On further enquiry, she pointed to her private
parts and stated that the appellant had put something
in there. Ms M
went to confront the appellant, who denied the allegations. Ms M
immediately went to report the matter to the
police together with the
complainant. She thereafter took the child to the doctor who
completed the J88 report.
[9]
The complainant testified through an
intermediary. She stated that the incident took place at the house of
the appellant; although
she was unable to remember the date. She was
eating in the kitchen when the appellant called her to his bedroom.
In court, the
complainant made use of two dolls, a male figure and a
female figure, to demonstrate how the rape took place. She undressed
the
dolls and pointed the court to the vagina (‘koekoenasie’)
and penis (‘bird’). She demonstrated how the appellant
had put his ‘bird’ into her ‘koekoenasie’.
[10]
The appellant denied that he had raped
his daughter. He admitted that he was with the complainant on the day
in question. His version
was that the complainant was coached by Ms M
to lie to the court about him. Ms M, according to the appellant,
wanted
him in jail so that he would not receive money that was due to
him from the Road Accident Fund, in relation to an accident in which
he was injured. He stated that she wanted the money for her and the
complainant.
[11]
He also testified that he had become
impotent as a result of the accident, but provided no medical
evidence in this regard. In addition,
this version was not put to
Ms M. He admitted the DNA results and stated that perhaps Ms M
had stored his semen when
they were together so that she could plant
it on his daughter's panties in order to trap him.
[12]
The
learned magistrate treated the testimony of the complainant as that
of a single witness and that of a child witness. He approached
it
with the necessary caution and considered the provisions of s 208
of the CPA.
[4]
[13]
It is
settled in our law that in evaluating evidence, all that the trial
court has to ask itself is whether the evidence presented
to it by a
young witness is trustworthy. For the evidence of such witness to be
trustworthy would depend on a number of factors,
such the child’s
power of observation, recollection, and the power of narration of the
specific events at hand.
[5]
[14]
It is trite
that a court is entitled to treat single and/or child witnesses with
a certain amount of caution. This does not elevate
the position to
that of applying the cautionary rule.
[6]
The court need only find that the evidence was trustworthy and that
the truth has been told. See
S
v Sauls
[7]
where
it was held that:
‘
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness….
The trial Judge will
weigh his evidence, will consider its merits and demerits and, having
done so, will decide whether it is trustworthy
and whether, despite
the fact that there are shortcomings or defects or contradictions in
the testimony, he is satisfied that the
truth has been told. The
cautionary rule…may be a guide to a right decision but it does
not mean “that the appeal
must succeed if any criticism,
however slender, of the witnesses' evidence were well founded”….
It has been said more
than once that the exercise of caution must not
be allowed to displace the exercise of common sense.’
[15]
In
S
v Artman
,
[8]
Holmes JA held as follows:
‘
She was, however,
a single witness in the implication of the appellants. That fact,
however, does not require the existence of implicatory
corroboration:
indeed, in that event she would not be a single witness. What was
required was that her testimony should be clear
and satisfactory in
all material respects….’
[16]
In
S
v
Mahlangu
,
[9]
the SCA said the following:
‘
The court can base
its finding on the evidence of a single witness, as long as such
evidence is substantially satisfactory in every
material respect,
or
if there is corroboration. The said corroboration need not
necessarily link the accused to
the crime
.’ (Emphasis
added)
[17]
The learned magistrate accepted the
evidence of Ms M. He found that she was a reliable and credible
witness and had told the truth.
In regard to the complainant, the
magistrate stated as follows:
‘…
There
were some discrepancies in her evidence. The court is going to put
this to her tender age. But in general this child gave
evidence of a
clear and concise nature explaining in great detail what
transpired…when she was raped by her father, the
accused…She
is further clear of the identity of the perpetrator being the
accused. The accused is known to her being her
father. The last
incident took place in broad daylight. There is no reason that this
child would have made a mistake in the identity
of her
perpetrator.’
[10]
[18]
There is no issue in this case of
mistaken identity. The evidence of the complainant is corroborated by
the medical evidence presented
by Dr Nkondo and, more
particularly, by the DNA evidence which directly implicates the
appellant.
[19]
In
regard to the evidence of the appellant, the learned magistrate
remarked that he gave poor quality evidence. His evidence was
comprised of ‘improbabilities and inconsistencies’.
[11]
The court thus rejected the version of the appellant that the
complainant was coached by her mother to implicate him in a crime.
The state witnesses and the corroborating evidence referred to above
demonstrate that the appellant was correctly convicted of
the
offence.
SENTENCE
[20]
The
imposition of sentence is in the discretion of the trial court and a
court of appeal does not interfere with this discretion
for frivolous
reasons. In
S
v Nkosi
,
[12]
Maya JA held as follows:
‘…
it
should be reiterated that sentencing is pre-eminently a matter for
the discretion of the trial court and that this court does
not have
an overriding discretion to interfere unless the sentences imposed by
the court below are vitiated by an irregularity
or misdirection or
are disturbingly inappropriate.’
[21]
The charge sheet explicitly stated that
the state would be relying on the provisions of s 51(1)(
a
)
of the
Criminal Law Amendment Act 105 of 1997
, which provides for a
prescribed sentence of life imprisonment to be imposed in relation to
the rape of a minor.
[22]
The trial court considered the
pre-sentence report, as well as a victim impact report. The victim
impact report contains a detailed
assessment of the impact of trauma
suffered by the complainant as a result of the rape. This was her
father, the person that she
trusted, who violated her. The damage may
well be irreparable.
[23]
The personal circumstances of the
appellant provided no substantial and compelling reasons why the
sentence of life imprisonment
should not be imposed.
[24]
The aggravating circumstances outweigh
any personal circumstances in favour of the appellant. These include
the following factors:
1.
Rape is a serious and prevalent offence.
2.
The complainant was a minor child at the
time of the rape, age 6 years old. She was defenceless and could
offer no resistance to
the appellant.
3.
The appellant was her father; a trusted
person in her life.
4.
She was deprived of her innocence.
5.
The appellant did not use any form of
protection when raping the complainant; this exposed her to the
possibility of contracting
a sexually transmitted disease.
6.
The appellant was not a first-time
offender. He had two previous convictions for assault which contain
an element of violence.
[25]
Rape is a humiliating and degrading, and
a brutal invasion of the privacy, dignity, and person of the victim –
more particularly
in a case such as this where a young child of six
is raped by her father. Nothing less than a life sentence is
warranted in this
case.
ORDER:
[26]
Accordingly the appeal against
conviction and sentence is refused.
______
_______
S
E WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
_____________________________
T
P MUDAU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of hearing: 28 January 2020
Date
of judgment: 25 February 2020
Appearances:
Counsel
for the Appellant: Adv. AH Lerm
Instructing
Attorneys: Legal Aid
Counsel
for the Respondent: Adv. MM Mbaqa
[1]
S
v Ntsele
1998
(2) SACR 178
(SCA), see headnote at 180D.
[2]
Mkhize
v S
(16/2013)
[2014] ZASCA 52
(14 April 2014) at para 14 (Maya, Shongwe,
Willis and Saldulker JJA concurring).
[3]
S v
Naidoo & others
2003 (1) SACR 347
(SCA) para 26.
[4]
Section
208
of the CPA provides as follows: ‘An accused may be
convicted of any offence on the single evidence of any competent
witness.’
[5]
See
Woji
v Santam Insurance
Co Ltd
1981 (1) SA 1020
(A).
[6]
See
S v
M
1999
(2) SACR 548 (SCA).
[7]
S v
Sauls and Others
1981
(3) SA 172
(A) at 180E-G.
[8]
S v
Artman and Another
1968
(3) SA 339
(A) at 341A-B.
[9]
S v
Mahlangu
2011 (2) SACR 164
(SCA) at 171B.
[10]
See p188 of the record.
[11]
See p119 of the record.
[12]
S v
Nkosi
2011
(2) SACR 482
(SCA) para 34.