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[2014] ZASCA 136
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K v S (076/14) [2014] ZASCA 136 (25 September 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 076/14
In
the matter between:
A[…]
E[…]
K[…]
...............................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation
:
K[…]
v The State
(076/14)
[2014] ZASCA 136
(25 September 2014)
Coram:
Brand and Mbha JJA and Mathopo AJA
Heard:
9 September 2014
Delivered:
25 September 2014
Summary:
Rape of daughters by their father, a
police inspector ─ younger daughter falling pregnant ─
pregnancy terminated ─
court finding evidence of complainants
clear and satisfactory ─ rejected appellant’s version.
Sentence of life imprisonment
imposed for both counts to run
concurrently ─ rape horrendous enough to justify the imposition
of the ultimate penalty.
ORDER
On
appeal from:
Limpopo High Court,
Thoyandou (Makgoba AJ sitting as court of first instance):
It is ordered that:
The
appeal against the convictions and sentences is dismissed.
JUDGMENT
Mathopo
AJA (Brand and Mbha JJA concurring)
[1]
The appellant Mr AK, a police inspector,
was convicted by the Limpopo High Court, Thohoyandou of two counts of
raping his two daughters
Ms N and Ms T, during the period 1991 to
2001. By reason of the ages of the complainants at that time each
count of rape bore a
prescribed minimum sentence of life imprisonment
under the provisions of section 51(1) of the Criminal Law Amendment
Act 105 of
1997 (the Act), unless there were substantial and
compelling circumstances justifying a more lenient sentence. Makgoba
AJ, who
heard the matter, concluded that there were no such
circumstances and, taking both counts together for the purposes of
sentence,
imposed life imprisonment. On the 26 April 2002 he mero
motu granted leave to appeal to this court against the convictions
and
sentences.
[2]
For reasons that do not emerge clearly from the record, this appeal
was prosecuted after 12 years. This court has in many judgments,
especially those emanating from where this appeal comes from,
bemoaned the fact that practitioners should guard against inordinate
delays which have become rampant and systemic. It would seem that
despite repeated warnings by this court, its advice has not been
heeded. Such a state of affairs cannot be allowed to continue because
such inexplicable delays will make society lose confidence
in our
courts and innocent persons may unduly or unjustly be incarcerated
for a long period of time. Fortunately in this
matter, as the
analysis of the evidence will show, the appellant did not suffer any
injustice.
[3]
I now turn to the merits of the appeal. The crucial issue before this
court is whether the appellant was correctly convicted
of raping his
two daughters over a considerable period, and whether the court below
should have found that substantial and compelling
circumstances
existed to justify a lesser sentence. In view of appellant’s
denial and the allegations that the complainants
were influenced by
his wife to falsely incriminate him, the facts are relatively
straight forward.
[4]
The background facts are as follows: Ms N (the first complainant),
was a first year student at the University of Venda at the
time of
the trial. She testified that in 1993 when she was ten years old and
during her mother’s temporary absence, the appellant
called her
to his room while she was playing with her friend. He made her sit on
his lap, undressed her and inserted his penis
into her vagina. She
cried during the ordeal, which was her first sexual experience. In
order to escape the consequences of his
terrible deed, the appellant
threatened to assault or kill her if she reported what he had done.
The sexual acts continued until
1997. The appellant stopped for a
while and then resumed the sexual assaults in 2000. When she
protested, the appellant would beat
her up. In February 2000 when she
was sharing a room with her younger sister, Ms T, the appellant came
to their bedroom and shared
a bed with them. He later pulled Ms N
down to the floor and raped her. When she resisted, the appellant
assaulted her. After raping
Ms N, the appellant then pulled her
younger sister Ms T down and also raped her. She did not know at that
stage that the appellant
had been sexually molesting her younger
sister as well. She testified that seeing the appellant raping her
younger sister was emotionally
distressing for her. She did not
discuss the incident involving, her younger sister with anyone
because of the threats by the appellant.
[5]
On 10 November 2001, when the first complainant was busy with her
school examinations, the appellant instructed her not to lock
her
door during the night. She did not obey his instructions. The
appellant forcefully knocked on the door until Ms N opened for
him.
Upon entering the room, the appellant pulled her outside the room,
beat her up and ordered her not to lock the door again.
A few
minutes, later he returned and found her crying and then raped her.
This was the last time she was sexually penetrated by
the appellant.
She explained, that during the ordeal her vagina would be torn,
rendering her unable to walk properly. Instead of
assisting her and
stopping with his unlawful activities, the appellant instructed her
to walk properly and not to draw other people’s
attention to
the fact that there was something amiss with her. It was her evidence
that the appellant would rape her even when
she was menstruating. She
failed Standard 10 (Grade 12) as a result of the rapes because she
could not properly concentrate on
her school work. When her mother
confronted Ms T about her pregnancy on 24 November 2001, Ms N told
her mother that the appellant
had raped both her and Ms T.
[6]
On 15 December 2001, the appellant confronted Ms N and asked her why
she had reported the incidents to her mother. He then instructed
her
not to close the door of her room, and told her that he would come
that night. Ms N then informed her mother and Ms T of this,
and her
mother instructed her not to comply. When the appellant came at night
the door was locked. He then kicked the door open.
Thereupon he
slapped Ms N with an open hand for refusing to obey his instruction.
At that stage and because of the commotion, Ms
N’s mother came
to her aid, but the appellant chased her away. On 16 December 2001,
the appellant accused Ms N of causing
all the difficulties and
pointed a gun to his head, saying that she must watch him kill
himself.
[7]
In cross-examination, Ms N disputed that she had been influenced by
her mother to incriminate the appellant. She reiterated
that the
reason why she did not tell her mother earlier is that the appellant
had threatened to kill her, and that he assaulted
her several times
when she refused to submit to his sexual advances. During questioning
by the court she testified in the appellant’s
favour that he
paid her university fees. Yet she was adamant about the rapes and the
threats he had made.
[8]
Ms T, who was 16 years old when she testified in court, corroborated
the evidence of her sister about the rapes that took place
in her
presence. According to her evidence, the appellant
attempted to rape her when she was six years old in 1991
and still in
Sub A (Grade 1). She testified that the appellant had called her to
his bedroom and made her sit on his lap, undressed
her and tried to
insert his penis into her vagina. He could not penetrate her because
her vagina was small. She described the ordeal
as painful.
Thereafter, the appellant had instructed her not to tell her mother
or anybody else about what had happened. During
early 1996, the
appellant succeeded in penetrating her and after that would rape her
at least four times a month. The appellant
then stopped, but resumed
raping her in June 1996 when she was in Standard 4. During 2001, at a
time when she was sharing a bed
with her older sister, Ms N, the
appellant came to them at night and raped both of them on the floor.
The appellant continued raping
her until September 2001 when she
stopped menstruating. When she told the appellant about this, he
promised to take her to the
doctor. She confirmed that her
mother confronted her on 24 November 2001 about her pregnancy.
Because of the appellant’s
threats she refused to disclose that
her father had impregnated her, until Ms N told her mother that the
appellant was responsible.
Ms T confirmed that her pregnancy was
terminated on 30 November 2001. She also corroborated her sister’s
evidence about the
appellant’s visit on the 15 December 2001.
In cross-examination she testified that, although she could not
remember how many
times the appellant had raped her, she was emphatic
that from 1996 the appellant would rape her on a weekly basis. She
disputed
the allegation that she was influenced by her mother to
incriminate the appellant and stated that the appellant threatened to
kill
her if she told anybody about the rapes.
[9]
The doctor who examined the complainants came to the conclusion that
there was indeed sexual penetration. In the Form J88 there
is
annotation by the doctor that the nature of the complainants’
injuries is consistent with sexual assault.
[10]
Ms K, the mother of the complainants and wife of the appellant,
testified that on 24 November 2001 she observed that her daughter,
Ms
T, appeared to be pregnant. She confronted her and the latter denied
it. She then asked Ms T whether she had a boyfriend or
not. She
threatened to assault her with a belt. At that stage Ms N came to her
rescue and told her mother that it was the appellant
who had
impregnated Ms T, and that he had raped her repeatedly as well. Ms K
confronted the appellant who admitted his guilt and
asked for
forgiveness. The complainants were called into the main bedroom and
in the presence of Ms K, the appellant repeated his
admission that he
had raped them and asked for their forgiveness. Ms K and the
appellant then decided that Ms T should undergo
an abortion and that
the pregnancy should be kept a secret from other family members, and
also not to report the rapes to the police.
[11]
Under cross-examination, Ms K conceded that her marriage to the
appellant was not a happy one, and admitted to having had an
extra-
marital affair, but emphatically denied the suggestion that she had
influenced the complainants to falsely implicate the
appellant. She
conceded that she had never noticed anything abnormal or untoward
with the children, until 24 November 2001. Ms
K confirmed that on 30
November 2001 she attended at Dr Mutshembele’s rooms with Ms T
and the doctor terminated the pregnancy.
Lastly, she testified that
the appellant chased them from their home on 15 December 2001, and
her pastor then advised her to report
the matter to the police.
[12]
Dr Mutshembele corroborated the evidence of Ms K and Ms T about the
termination of the pregnancy and confirmed that the appellant
came to
his rooms later in the afternoon to check whether everything had gone
well. According to the doctor, Ms T was about four
months pregnant
and he had prescribed tablets to terminate her pregnancy. It was
successfully terminated on 1 December 2001.
[13]
In his defence, the appellant denied all the allegations against him
and called several witnesses, mostly his family relations,
to support
his case. He described himself as a good and caring father who was
always attached to his children, because his wife
was constantly away
from home. He testified that his wife had influenced them to falsely
implicate him because she no longer loved
him and had hired assassins
to kill him. He also accused his wife of conducting numerous illicit
relationships. He denied raping
his two daughters and suggested,
quite implausibly, that he could not have done so because he normally
had sexual intercourse with
his girlfriends, when his wife was away
from home.
[14]
During cross-examination he was asked why he went to the
complainants’ bedroom on 15 December 2001. He responded by
saying that he wanted to check if they had boyfriends in their rooms
or not. This is entirely unconvincing. Again, when asked about
the
menstrual cycles of his daughters, he initially admitted and later
changed his version and said he did not know. Confronted
with the
allegations that he impregnated his younger daughter, he could not
offer any reasonable explanation. He also could not
explain why he
did not ask Ms T who had impregnated her. The reason for his silence
is not difficult to understand. The appellant’s
witnesses
misguidedly gave evidence that because the complainants had not
reported the rapes to them, the rapes had not occurred.
The trial
court rightly regarded their evidence as unhelpful.
[15]
In this court, the main thrust of the appellant’s contention
was that he suffered prejudice by reason of the admission
of the
evidence of the complainants, which ought not to have been admitted
because the complainants were influenced by their mother
to report
the alleged rapes which they would otherwise not have reported. In
support of his submission, counsel for the appellant
relied on the
case of
S
v
T
.
[1]
He argued further that because the complaints were not voluntarily
made but induced by the fear of assaults or threats, their admission
as evidence should be rejected. In support of this argument he relied
on the case of
S
v
Khorommbi
.
[2]
Reliance on these cases is misplaced. On the evidence of the State’s
witnesses together with other corroborative evidence,
there are many
serious inherent improbabilities in the appellant’s evidence,
which I will deal with later.
[16]
I accept, as this court did in
Maseti
v
S
,
[3]
that an accused who claims to have been falsely accused is under no
obligation to explain the motives of his accusers, and should
not be
asked to do so as there is no onus on him to convince the court.
Where an accused proffers a reason for the accuser’s
motives,
as in this case, such alleged motives must be analysed together with
all the evidence given by the accusers. If, after
all the evidence
has been thoroughly examined, the trier of fact is convinced that
there is no basis for imputing the false accusation
on the accuser,
the next enquiry is to establish whether the State has proved the
guilt of the accused beyond reasonable doubt.
In the present matter,
the trial judge conducted a proper assessment and analysis of the
evidence by, amongst other things, weighing
the strengths and the
weaknesses of the State’s case as opposed to that of the
appellant, including the probabilities and
improbabilities of both
versions. The judge correctly rejected the appellant’s
evidence. See
S
v Van der Meyden
.
[4]
[17]
The evidence of the appellant is inconsistent and improbable in
various respects. He denied raping his two daughters. When
confronted
with the allegations that he impregnated his younger daughter, and
arranged for the termination of her pregnancy with
Dr Mutshembele, he
denied the allegations in spite of the overwhelming evidence against
him. He blamed their mother and suggested
that she had influenced
them to falsely incriminate him. This was clearly an attempt to
deflect the allegations against him on
flimsy grounds.
[18]
The complainants were extensively cross examined during the trial and
they did not lose focus when recounting the details of
how they were
raped by the appellant. The trial judge took into account the tender
ages of the complainants when the rapes were
committed, and carefully
dealt with the inconsistencies in their evidence, which were not
material. He commented favourably on
their demeanour, a finding which
an appeal court is slow to interfere (
R
v
Dhlumayo
& another
[5]
).
A perusal of the evidence of the complainants confirms the findings
of the trial judge that the complainants were good witnesses
who
satisfied the cautionary rules relating to the evidence of young
witnesses and single witnesses.
[19]
The following aspects of the evidence are destructive to the
appellant’s credibility and reliability as a witness: the
first
and the most damning evidence against the appellant is that he raped
the complainants separately and in the presence of one
another over a
long period of time. They corroborated each other in all material
respects regarding the instances when the appellant
came to their
room and raped them on the floor. Secondly, the complainants
described in graphic detail how he raped them and were
able to give
accurate and consistent evidence with regard to the number of times
and years that the rapes took place. Thirdly,
the appellant
threatened to kill or assault them should they report the rapes. When
the complainants mother confronted Ms T about
her pregnancy she was
therefore reluctant to tell her the identity of the perpetrator until
her sister, Ms N, did so. Fourthly,
the fact that Ms T fell pregnant
as a result of the rapes, that the appellant admitted that he was
responsible and that he arranged
for the termination of the pregnancy
makes his denial of the rapes utterly unconvincing. Finally, the
evidence of Dr Mutshembele
that the appellant consulted with him two
days before to arrange for the termination of the pregnancy and then
came back to enquire
whether it had been successful, is another
factor indicative of the falsity the appellant’s denial of
guilt.
[20]
The reprehensibility of the appellant’s conduct, is exacerbated
by the fact that a few weeks after he had apologised
and had Ms T’s
pregnancy terminated, he instructed Ms N not to lock the door.
Clearly he was unrepentant and wanted to continue
with his heinous
activities. His evidence that he went to their rooms to check if they
had boyfriends or not was an afterthought
and was correctly rejected
by the trial court.
[21]
In the light of the findings of the trial judge on the reliability of
the complainants and their mother, I am satisfied that
the evidence
of sexual penetration found by the doctor was compatible with the
complainants’ evidence. This evidence cannot
be reconciled with
the version of the appellant that he did not rape them. I am also
satisfied that, on the test set out in
S
v
Sauls
,
[6]
the truth was told by the complainants as to the various incidents of
rape by the appellant. Accordingly there is no merit in the
appeal
against the convictions and it must fail.
[22]
In this court the sentence was attacked on two grounds. Firstly, that
the court below applied the provisions of the Act without
prior
warning to the appellant, and thus that the trial court erred in
applying the provisions of the Act. Secondly, the trial
court should
have found that substantial and compelling circumstances existed to
justify a departure from the Act and impose a
lesser sentence.
[23]
Dealing solely with the offences, there is no doubt that the rapes
had a serious effect on the complainants. What is more aggravating
is
the fact that the rapes were committed by their father in the
sanctity of their own home, where they ought to be safe. The rapes
were committed over a long period of time when they were still young
and immature. The appellant abused his position of trust.
The
complainants looked to him for protection and guidance. As a result
of the rapes, the trial judge correctly remarked that the
complainants’ future has been ruined. Their whole life is in
tatters. Ms T fell pregnant as a result thereof. She endured
the
humiliation and pain of having the pregnancy terminated. This must
have been emotionally devastating. The fact that the appellant
stood
in a father and daughter relationship makes his offences more
serious. He preyed on his daughters’ weaknesses because
they
were young, defenceless and vulnerable. He threatened to kill them if
they divulged his nefarious deeds.
[24]
The evidence reveals that after the appellant asked for forgiveness,
the complainants and their mother forgave him and were
prepared to
not report the matter to the police. Sadly for them, the appellant
was unrepentant because shortly thereafter he went
to the
complainants’ room under false pretences, wanting to continue
with his unlawful activities. This is aggravating in
the extreme.
Cameron JA described the rape of a minor by her father eloquently as
follows in
S
v Abrahams
:
[7]
‘
Of
all the grievous violations of the family bond the case manifests,
this is the most complex, since a parent, including a father,
is
indeed in a position of authority and command over a daughter. But it
is a position to be exercised with reverence, in a daughter’s
best interests, and for her flowering as a human being. For a father
to abuse that position to obtain forced sexual access to his
daughter’s body constitutes a deflowering in the most grievous
and brutal sense.’
Later in the
judgment (para 23) Cameron JA proceeds to say:
‘
Second,
rape within the family has its own peculiarly reprehensible features,
none of which subordinate it in the scale of abhorrence
to other
rapes.’
Importantly, in para
23(c), dealing with the effect of incestuous rape as is the case
here, he states that:
‘
Third
and lastly, the fact that family rape generally also involves incest
(I exclude foster and step-parents, and rapists further
removed in
family lineage from their victims) grievously complicates its
damaging effects. At common law incest is still a crime.
Deep social
and religious inhibitions surround it and stigma attends it. What is
grievous about incestuous rape is that it exploits
and perverts the
very bonds of love and trust that the family relation is meant to
nurture.’
[25]
It cannot be denied that the rape of young girls by their father is
not only scandalous but morally reprehensible. Rape is
undeniably a
despicable crime. In
N
v T
[8]
it was described as ‘a horrifying crime and is a cruel and
selfish act in which the aggressor treats with utter contempt
the
dignity and feelings of [the] victim’. In
S
v Chapman
[9]
this court said it is ‘a humiliating, degrading and virtual
invasion of the privacy, the dignity and the person of the victim’.
Its gravity in this case is aggravated by the fact that the victims
were 10 and 6 years respectively when the appellant commenced
with
his unlawful activities. In
S
v Jansen
[10]
rape of a child was said to be ‘an appalling and perverse abuse
of male power’. The court there went on to say:
‘
It
is sadly to be expected that the young complainant in this case,
already burdened by a most unfortunate background . . . and
who had,
notwithstanding these misfortunes, performed reasonably well at
school, will now suffer the added psychological trauma
which resulted
in a marked change of attitude and of school performance. The
community is entitled to demand that those who perform
such perverse
acts of terror be adequately punished and that the punishment reflect
the societal censure.
It
is utterly terrifying that we live in a society where children cannot
play in the streets in any safety; where children are unable
to grow
up in the kind of climate which they should be able to demand in any
decent society, namely in freedom and without fear.
In short, our
children must be able to develop their lives in an atmosphere which
behoves any society which aspires to be an open
and democratic one
based on freedom, dignity and equality, the very touchstones of our
Constitution.’
The
appellant showed no remorse for his actions and persisted in his
innocence and subjected the complainants to the nightmare of
the
trial. This experience was traumatic. It cannot be disputed that the
impact is both devastating and far-reaching. The complainants
will be
left with permanent emotional scars for the rest of their lives.
[26]
The appellant did not testify and inexplicably his counsel did not
address the court in mitigation of sentence nor adduced
any evidence
aimed at establishing whether substantial and compelling
circumstances existed to justify a departure from the prescribed
sentence. It also does not appear from the record that the trial
judge ascertained what may constitute mitigating factors or
substantial
and compelling circumstances.
[27]
The reluctance on the part of the appellant and his counsel to adduce
evidence to assist the court in establishing whether
substantial and
compelling circumstances existed to justify the imposition of a
lesser sentence could have occurred as a result
of the appellant
having realised that the evidence against him was overwhelming and
that it would be futile to attempt to convince
the court otherwise.
This is the choice that the appellant made and it is also not without
consequences. As a result of the strategy
adopted by the appellant in
the court below, there were no facts placed before the trial court to
determine what constitutes mitigation
and/or substantial and
compelling circumstances.
[28]
Regarding the trial court’s alleged failure to forewarn the
appellant of the applicability of the Act, counsel for the
State
rightly contended that the appellant was legally represented and he
ought to have been aware of the provisions of the Act.
This is
because during the sentencing stage, his counsel alluded to the
provisions of the Act. In my view the provisions of the
Act were
clearly brought to the attention of the appellant and he clearly
conducted his case fully aware that upon conviction the
minimum
sentence would be applicable to him. See
S
v
Ndlovu
.
[11]
In this court counsel for the appellant conceded correctly in my view
that the provisions of the Act are applicable. His argument
that the
trial court should have found that substantial and compelling
circumstances existed is not supported by any evidence due
to the
appellant’s reluctance to adduce any such evidence. As a result
of that approach, the trial judge had no option but
to apply the
provisions of the Act and not deviate therefrom for flimsy reasons.
See
S
v
Malgas
[12]
and
S
v
Matyityi.
[13]
[29]
The sentence was undoubtedly one befitting the crimes committed by
the appellant. The most aggravating feature of this matter
is that
the appellant raped his own children over a long period of time. He
knew that his actions were wrong and dastardly. Even
when he was
afforded an opportunity by his wife to make amends, he again
attempted to rape Ms N. I am mindful of there being different
reasons
for an accused to deny a crime and that such denial does not
necessarily indicate lack of remorse. However where the overwhelming
evidence points towards his guilt and the accused persists in
protesting his innocence, finding of remorse cannot be made. In the
present matter the appellant elected not to testify, and the evidence
demonstrates that he was unrepentant. In my view there are
no
prospects that he will be rehabilitated. It follows that the appeal
against sentences must also fail.
[30]
One final aspect requires comment. After expressing himself
emphatically, the trial judge, after sentence, mero motu decided
to
grant leave to the appellant. It is unclear why the trial judge saw
fit to grant leave. As the evidence indicates, leave to
appeal was
granted inappropriately and this has the result that cases of greater
complexity have to compete for a place on the
roll with a case which
has no merit at all. See
S
v Monyane & others
.
[14]
[31]
The following order is made:
The
appeal against the convictions and sentences is dismissed.
R
S Mathopo
Acting
Judge of Appeal
Appearances
For
the Appellant: M Madima
Instructed
by:
Justice
Centre, Thohoyandou
For
the Respondent: R J Makhera
Instructed
by:
Director
of Public Prosecutions, Limpopo
High
Court, Thohoyandou
[1]
S
v T
1963 (1) SA 484 (A).
[2]
S
v Khorommbi
2013 JDR 2710 (SCA).
[3]
Maseti
v S
2014 (2) SACR 23
(SCA) paras 24-27.
[4]
S
v Van der Meyden
1999 (1) SACR 447 (W).
[5]
R
v Dhlumayo & another
1948 (2) SA 677 (A).
[6]
S
v Sauls
1981
(3) SA 172
(A) at 180E.
[7]
S
v Abrahams
2002 (1) SACR 116
(SCA) para 17.
[8]
N
v T
1994 (1) SA 862(C)
at 864G.
[9]
S
v Chapman
1997 (2) SACR 3 (SCA).
[10]
S
v Jansen
1999 (2) SACR 368
(C) at 378h-379a.
[11]
S
v Ndlovu
2003 (1) SACR 331 (SCA).
[12]
S
v Malgas
2001 (2) SA 1222 (SCA).
[13]
S
v Matyityi
2011 (1) SACR 40 (SCA).
[14]
S
v Monyane & others
2008 (1) SACR 543
(SCA) para 28.