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[2010] ZAGPPHC 550
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M v S (A52/09) [2010] ZAGPPHC 550 (1 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case No: A52/09
Date heard:
23/02/2010
Date of judgment: 1
April 2010
Not Reportable
Not of interest to
other judges
In the matter
between:
M[...]
M[...]
.....................................................................................................................................
APPELLANT
and
The
State
......................................................................................................................................
RESPONDENT
JUDGMENT
DU PLESSIS J:
The
regional court found the appellant guilty on two counts of rape. The
complainant was under the age of 16 at the time of the
rape. For
purposes of sentence the trial court took the convictions as one and,
applying the provisions of the
Criminal
Law Amendment Act, 105 of 1997
,
sentenced
the appellant to imprisonment for life. The appellant now appeals
against the convictions and the sentence.
The state alleged
that the appellant had respectively during January 2007 and on 25
February 2007 raped his 13-year old daughter,
N[...] R[...] H[...].
According to the
complainant, the first incident took place after midnight one night
in January 2007. She and her younger brother,
T[...], had been
playing “machines”. Her father fetched them in his car.
On the way home, T[...] fell asleep. The appellant
stopped the car
and reclined the complainant's seat. He undressed the girl and
himself, and had intercourse with her. He told his
daughter that she
was not to tell anybody about the event. He added that, if she did,
he would no longer buy her the things she
needed. The complainant
said that she did not believe this threat. Although she lived with
them, the complainant nevertheless did
not report the incident to
either her mother or her grandmother. She said that she did not tell
them because her father, whom she
loved and respected, had told her
not to. She also did not report the incident because she did not
think that the others would
believe her.
Regarding the second
count, the complainant testified that on the evening of 24 February
2007 she was visiting family. After midnight
the appellant arrived
and they started home in his car. On the way the appellant bought a
cold drink for the complainant and liquor
for himself. By then,
according to the complainant’s evidence in cross examination,
the appellant was already drunk. He stopped
and parked the car in a
graveyard where he let the car seat down and started to undress the
complainant. When she asked him what
he was doing, he told her to
keep quiet and proceeded to have sexual intercourse with her. The two
of them then fell asleep. She
woke up and was busy dressing when two
policemen arrived. The police ordered the appellant and his daughter
out of the car. The
appellant told them that the complainant was his
girl friend. One of the policemen took the complainant aside, asked
her what had
happened and she told him that her father had raped her.
In the course of her
evidence the complainant mentioned that her father had given her a
cellular telephone, but she denied that
it had anything to do with
the rape.
The complainant was
taken to a doctor in the course of the day after they had been found
in the graveyard.
The two policemen
who found the appellant and his daughter in the graveyard gave
evidence for the state. One of them, Snyders, said
that they found
the two asleep in the car at about 03h45. The appellant was naked
from the waist down. Snyders said that his colleague,
Molefe, took
the girl to the police car while he (Snyders) asked the appellant
what was going on. The appellant told Snyders that
the girl was his
girlfriend. Snyders then went to the police car where the girl told
them that the appellant had offered her a
cell phone so as to sleep
with her. Snyders returned to the appellant's car and ordered him
out. The appellant, who clearly was
drunk, became quite aggressive
but was arrested.
Although there were
differences in the detail, the other policeman, Molefe, essentially
confirmed Snyders’s account of the
events.
Dr MM Potolo
examined the complainant on 25 February 2007. He testified that he
found clinical signs in keeping with sexual assault
and also with
penetration. In cross examination the doctor, however, conceded that
the clinical signs he found did not necessarily
indicate recent
penetration. Dr Potolo took specimens for forensic analysis. It is
common cause that on forensic analysis those
specimens were found not
to contain any semen. In fact, the analysis yielded no notable
result.
When he testified,
the appellant flatly denied the first incident on which he was
alleged to have raped his daughter.
Regarding the
incident on 25 February 2007 the appellant testified that he was
drunk and could remember nothing from the time he
had gone to his
family to fetch his daughter until the police found them in the
graveyard. He said that he did not believe that
he had had sexual
intercourse with his daughter.
As regards the first
count, there is nothing to corroborate the complainant’s
evidence. The appellant denied that the incident
took place at all.
The evidence shows that, despite here incriminating evidence, the
complainant still had regard for her father.
I agree with the learned
trial magistrate that, in the absence of any evidence indicative of
the contrary, it is unlikely that
the complainant would have falsely
incriminated her father. On its own, the evidence regarding the first
incident might not have
been sufficient to secure a conviction. All
the evidence, including that regarding the second incident must,
however, be taken
into account.
As regards the
second incident, the complainant’s evidence unequivocally shows
that intercourse took place. Her evidence in
that regard is borne out
by the compromising circumstances wherein the policemen found the
appellant and his daughter. It is also
borne out by the appellant’s
reaction at the time, namely to tell the police that the complainant
was his girlfriend. The
latter evidence, if accepted, leaves no doubt
that the appellant himself realised that the circumstances were
compromising.
The appellant’s
defence has two legs. Firstly, it was his evidence that he was drunk
to the extent that he did not know what
he was doing, tnereby
implying that even if he had had intercourse with his daughter, he
did not know about it. The undisputed
fact that the appellant drove
his car to the graveyard is a strong indication thereof that he could
not have been as drunk as he
wanted the court to believe. Also, the
undisputed fact that he coherently communicated with the police a few
hours after he had
parked, belies his version. Finally, if it is
accepted that he had intercourse with the girl, that in itself shows
that he could
not have been as drunk as he said he was. The evidence
of the police and of the complainant also shows the “drunken
stupor”
defence to be false.
The second leg of
the appellant’s defence was that he did not have intercourse
with his daughter. In the light of the circumstances
wherein the
police found him, this defence was rightly rejected by the trial
court. There is no basis to doubt the evidence of
the police in this
regard. In addition, of course, the complainant’s own evidence
and her immediate report to the police
supports the finding of the
trial court that the appellant’s denial was false. Finally, the
evidence that the appellant told
the police that the girl was his
girl friend also indicates the he knew that intercourse had taken
place.
To sum up, I agree
with the learned magistrate that, as regards the second count, the
state has proved beyond reasonable doubt that
the appellant had had
sexual intercourse with his daughter.
The next question is
whether the intercourse was without consent. The policemen testified
that on the scene the complainant told
them that the appellant had
promised her a cellular telephone in order to have, as Snyders’sput
it, sex with him. In her
evidence the complainant said that the
promise of the telephone had nothing to do with the sexual
intercourse but in the light
of the policemen’s evidence that
cannot be relied on. We are therefore bound to consider the question
of consent on the footing
that sexual intercourse took place after
the complainant had been promised a telephone if she had sex with her
father.
I accept that the
promise of the telephone had the effect that the girl did not
actively resist the sexual intercourse but does
it show a reasonable
possibility that she actually consented? The complainant in so many
words said that she did not consent. The
appellant did not say the
contrary because he denied intercourse. What we have to do,
therefore, is to consider whether the complainant’s
direct
statement might be false in view of all the evidence, particularly
that regarding the promise of the telephone.
When the police
asked her, the girl’s immediate reaction was that her father
had raped her. That in itself indicates that
she did not consent.
Moreover, the girl was in an impossible situation in which the
appellant had placed her. Her drunken father
had promised her a
telephone if she had intercourse with him.
She was alone with
him in a car in a graveyard. In my view she was left with no choice.
In the circumstances, to the extent that
she did not actively resist,
that does not show consent. In that context the fact that the medical
and forensic evidence does not
show non-consensual intercourse is
insignificant.
It is concluded that
the sexual intercourse took place without the complainant’s
consent.
Returning to the
first count, the circumstances surrounding the complainant’s
report of the second rape obviously gave her
the opportunity also to
complain of the first. The manner in which the second rape was
doubtlessly committed lends credence also
to the complainant’s
evidence regarding the first count. In my view, any doubt that might
have existed regarding the first
rape, is removed by the evidence of
the second rape.
It is concluded that
the appellant was rightly convicted on both counts.
Because
the complainant is under the age of 16,
section 51(1)
read with
Part
I
of Schedule 2 to the
Criminal
Law Amendment Act, 105 of 1997
prescribes
a minimum sentence of imprisonment for life unless the court can find
substantial and compelling circumstances that dictate
a lesser
sentence. The trial court found no such circumstances. The essential
question before us is whether such circumstances
exist.
The appellant was
about 39 years old at the time of the offences. He had a relatively
stable relationship with the victim’s
mother albeit that a
victim impact report that was put before the trial court by
agreement, shows that he had various other affairs.
The appellant has
previous convictions for theft and related offences but the trial
court, correctly in my view, did not take that
into account.
As regards the
crimes, it is evident from the victim impact report that the
complainant was severely traumatised by the incidents.
Her emotional
soundness has been compromised as also her perception of sexual
relations. The fact that the victim is the appellant’s
daughter
further aggravates the crimes. Most people would term such conduct
egregious even. It must, however be borne in mind that
at least the
second rape was committed when the appellant was drunk. That is no
excuse but goes some way towards explaining his
conduct.
Having regard to all
the circumstances, the question is whether the ultimate penalty is
just in this case. While serious, the appellant’s
crimes do not
fall in the category of extremely serious or even most serious
crimes. That being the case the trial court should
in my view have
held that the full spectrum of circumstances in this case render
imprisonment for life unjust. In my view the appellant
should be
sentenced to 18 years imprisonment on each count. The sentences
should be ordered to run concurrently.
In the result the
following order is made:
1. The appeal
against the convictions is dismissed.
2. The appeal
against the sentence is allowed. The sentence is set aside and in its
stead the following sentence is imposed: “On
each of counts 1
and 2 the accused is sentenced to 18 years imprisonment. The
sentences are ordered to run concurrently.”
3. The sentences are
antedated to 22 September 2008.
B.R. du Plessis
Judge of the High
Court
I agree
M.J.Dolamo
Acting Judge ofthe
High Court
On behalf of the
Appellant: Mnr. J.H. Smit Prokureurs
Posbus 3491
Vereeniging
1930
Adv. R. Van Wyk
On behalf of the
Respondent: Director of Public Prosecutions
Pretoria
Adv. A.J. Fourie