About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 467
|
|
Cloete v S (A422/2009) [2010] ZAWCHC 467 (10 September 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
..................................................................................................
A422/2009
DATE:
.................................................................................................
10
SEPTEMBER 2010
In the
matter between:
CLINT
CLOETE
…..................................................................................................
Appellant
and
THE
STATE
….....................................................................................................
Respondent
JUDGMENT
ROSE-INNES,
AJ:
The
appellant was charged in the Regional Court Bredasdorp with four
counts of rape and three counts of indecent assault. He was
legally
represented and pleaded not guilty on all charges. He testified on
his own behalf, but did not call other witnesses. In
evidence he
denied the allegations of indecent assault and rape.
The
appellant was acquitted on count 3 (a rape charge). The magistrate
found that the evidence of the complainant in relation to
that count,
C. L., was not sufficiently reliable to sustain a conviction. The
appellant was convicted on the other six counts.
The
complainant in those six counts is B. J. ("B."). She is the
appellant's [....], although she lived, until a period
shortly before
the alleged offences, with her mother. B. was 13 years of age at the
time. She was 15 when she testified and gave
evidence through an
intermediary. The appellant was sentenced to 18 years imprisonment
with the counts being taken together for
purposes of sentence The
appeal today lies against the conviction.
This
appeal was initially on the roll for hearing on 4 December 2009, but
there was no appearance on that day on behalf of the appellant.
At
the commencement of the appeal today, Mr Filand. on behalf of the
appellant, sought the reinstatement of the appeal in the
circumstances set out in an affidavit that was filed. This was
granted. The appellant commenced serving his sentence on 22 February
2010
The three
counts of rape (counts 1, 4 and 6) are alleged to have taken place in
2004, on or about 30 March 2005 and on or about
31 March 2005. The
three counts of indecent assault (counts 2, 5 and 7) are alleged to
have taken place during 2004, on or about
30 March 2005 and on or
about 31 March 2005.
The
convictions rest on the evidence of a single witness. While this
requires the exercise of caution in accordance with the established
approach set out, inter alia, in S v Sauls & Others 1981(3) SA
172 (A) at 180, the trial court must weight the evidence, consider
the merits and demerits and decide whether it is trustworthy and that
the truth as been told. The evidence is also that of a child
and in
respect of sexual offences. In this regard too, a measure of caution
may be required.
A careful
evaluation of B.'s evidence is, therefore, necessary. She lived with
her mother and stepfather in K., A.. The appellant
resided at the
time in Bredasdorp. During 2004 it was arranged that B. would go to
the appellant after school where her mother
would then collect her
after work. When her mother was on leave later that year, she spent
the week at the appellant's house, sleeping
there overnight.
The
appellant lived at home with his wife and two young children. When
she stayed with the appellant, B. slept alone in a room.
She
testified that at a stage in 2004 the appellant came to her bedroom
and lay with her, holding her tight. She told him to leave
her alone.
The first few occasions he lay with her and then returned to his own
room.
In the
course of her evidence, B. then referred to various occasions on
which, so she testified, the appellant had sexually assaulted
or
raped her. I will refer to these in the sequence in which they were
dealt with in her evidence.
At a
later stage in 2004, the appellant touched her breasts and panty. B.
testified that she did not initially tell anyone, because
she was
afraid. B. then related how after her mother had gone on maternity
leave in 2004, another incident occurred. On this occasion
the
appellant came to her room, licked her ears and vagina and kissed her
neck. These incidents in 2004 relate to count 2, the
indecent assault
allegedly committed in 2004.
The
prosecutor then asked B. whether anything else occurred in the period
January to April 2005. At that stage, in leading her,
the prosecutor
moved from the events of 2004 to 2005. No further evidence was given
in relation to anything else happening in 2004.
In particular there
was no specific evidence of any rape during 2004 as is alleged in
count 1.
B. then
proceeded to testify in relation to other incidents which occurred
during the first few months of 2005. The appellant came
to her room
on an occasion, again touched her breasts, pulled down her panty and
inserted his finger into her vagina. He also lay
on top of her and
inserted his penis in her vagina and had sex with her. It was painful
and she felt as if something had been taken
away from her. When asked
in evidence, B. thought that this occurred after her mother was on
maternity leave. She was, however,
uncertain whether this was in 2004
or 2005.
There is
in the circumstances uncertainty in relation to the first count of
rape. This uncertainty may have been occasioned by the
manner in
which the evidence was led by the prosecutor, but there is
uncertainty nonetheless. B. initial evidence is that nothing
further
occurred in 2005. She was thereafter uncertain as to whether the
first rape occurred in 2004 and 2005. Her evidence in
this regard has
to be approached with the requisite degree of caution. It was
submitted by Mr Filand. in his comprehensive written
and oral
argument, that there was no basis for finding the appellant guilty of
count 1. The State, in argument, conceded that the
evidence could not
sustain such a conviction. In the circumstances the evidence does not
establish the commission of count 1 beyond
reasonable doubt and the
magistrate misdirected herself in convicting the appellant on count
1.
B. then
proceeded to testify in relation to other incidents in 2005. There
was an occasion at a later stage when C. L. told her
that the
appellant had had sexual intercourse with her. B. informed her that
she would not get pregnant as her […] had told
her that he can
no longer have children. Charne slept with B. at the appellant's
house that night. The appellant came to their
room and touched B..
She rolled away. The appellant slept in their bed that night.
On 30
March 2005, B. was in A.. The appellant contacted her telephonically
to say that she should come to Bredasdorp, which she
did. B.
testified that that night the appellant indecently assaulted her by
licking her ears. When he tried to kiss her, she pulled
away. He also
licked her vagina and inserted his finger. She testified further that
he had sexual intercourse with her. This evidence
relates to counts 4
and 5. The following day, 31 March 2005, B. told S. M., according to
her, what had occurred.
On the
evening of 31 March 2005, B. again spent the night at the appellant's
house. She testified that on that occasion too, he
inserted his penis
in her vagina and again had sexual intercourse with her. Count 6
relates to this evidence.
Count 7
is a further charge of indecent assault. It is alleged that the
appellant also indecently assaulted B. on 31 March 2005.
No further
evidence was, however, led in this regard. The conviction of count 7
must, as the State accepted, be set aside.
B.
thereafter told her mother what had happened. She was taken to the
police station and medically examined.
I have
dealt above with the fact that the evidence cannot support the rape
conviction in respect of count 1 and the indecent assault
in respect
of count 7. it is necessary to consider whether the learned
magistrate misdirected herself in respect of the remaining
counts of
rape (counts 4 and 6) and indecent assault (counts 2 and 5).
The trial
court had the benefit of observing B. and assessing her demeanour, as
it did in relation to the appellant. She made a
favourable impression
and gave her evidence in what the court describes as a satisfactory
manner. She was at times understandably
emotional, but answered the
questions that were posed of her. She was found by the trial court to
be a truthful witness, who had
no motive falsely to implicate the
appellant. The trial court could no find material contradictions or
inconsistencies in the evidence
given by her in relation to the
commission of the offences about which she testified. The magistrate
found a measure of corroboration.
She pointed to the evidence of B.'s
mother, who described her distress at the time when asked to go to
the appellant's house.
On behalf
of the appellant, it was argued that B.'s evidence was vague in
certain respects. Vagueness in itself does not necessarily
indicate
untruthfulness. B.'s evidence in relation to the commission of the
offences was not in the circumstances vague and certainly
not so
vague as to justify the rejection of that evidence. It was also
submitted on behalf of the appellant that there were improbabilities
in relation to B.'s evidence, which demonstrate that she was not a
truthful witness. I am unable to agree or find that the magistrate
was wrong in accepting B.'s evidence as truthful.
As far as
the appellant's evidence is concerned, he denied the allegations of
indecent assault and rape. He did, however, acknowledge
that he would
on occasions lie next to B. on her bed. He did not impress the trial
court as a witness and the magistrate describes
him as being
uncomfortable in the witness box and as giving his evidence in an
unconvincing fashion. His explanation that B. may
have falsely
implicated him, because she had gone to Caledon, was found by the
trial court to be unacceptable. The court, after
evaluating his
evidence, rejected it as false where it directly conflicted with that
of B..
In the
circumstances the trial court did not, in relation to the convictions
on counts 2, 4, 5 and 6 misdirect itself. I cannot
find any reason to
interfere with these convictions.
Although
there is no appeal against sentence, it is necessary to reconsider
the sentence of 18 years imprisonment in the light of
the fact that
two of the convictions are to be set aside. The convictions on two
counts of rape and two counts of indecent assault
which the
magistrate took as one for the purposes of sentence, are very serious
offences. An appropriate sentence must reflect
this. They were
committed by a father on his young daughter. It must have had a
profound psychological and emotional effect on
her. This is borne out
by B.'s subsequent attempts to take her own life.
The
magistrate took all relevant considerations into account in assessing
the sentence. I have had regard to the approach that she
adopted.
She, however, determined a sentence in respect of six counts. Having
regard to the offences committed, the personal circumstances
of the
appellant and the interests of the community, a substantial period of
imprisonment is clearly warranted in this case. In
view of the fact
that two of the convictions are to be set aside, the period of
imprisonment should, in my view, be reduced. It
should nonetheless
reflect the seriousness with which a court should regard crimes of
this nature. In the circumstances a period
of 15 years imprisonment
is an appropriate sentence for the four counts taken together, where
the convictions are confirmed.
I would
accordingly make the following order:
1. The
appeal in respect of the convictions on count 1 (rape) and count 7
(indecent assault) is upheld and the convictions on counts
1 and 7
are set aside.
2. The
appeal against the convictions on the remaining counts is dismissed.
The convictions on count 2 (indecent assault), count
4 (rape), count
5 (indecent assault) and count 6 (rape) are confirmed.
3. The
sentence of 18 years imprisonment is set aside and substituted with a
sentence of 15 years imprisonment.
___________________
ROSE-INNES,
AJ
ZONDI,
J
: I concur and it is so ordered.
___________________
ZONDI,
J