About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 19
|
|
T.M v S (A27/2023) [2024] ZAFSHC 19 (29 January 2024)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: A27/2023
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
T[...]
M[...]
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
REINDERS, J
et
BUYS, AJ
HEARD
ON
:
29 JANUARY 2024
DELIVERED
ON:
29 JANUARY 2024
JUDGMENT
BUYS, AJ
[1]
This is a judgment in the appeal by the appellant against the
conviction of rape and the sentence
of life imprisonment. The
appellant was convicted of rape and subsequently sentenced to life
imprisonment on 28 June 2018.
[2]
Without providing a plea explanation, the appellant pleaded not
guilty to the charge of raping
the complainant on or about October
2014 and at or near Bloemfontein more than once. The complainant was
14 years at the time.
[3]
The grounds of the appellant’s appeal can be summarised as
follows:
[1]
[3.1]
In challenging the conviction of guilty referred to above, the
appellant contends firstly that the respondent
failed to prove,
beyond a reasonable doubt, that the appellant had sexual intercourse
with the complainant without her consent,
and secondly, referring to
that alleged rape in Limpopo Province, the appellant contends that
the court
a quo
did not have jurisdiction over this alleged
rape.
[3.2]
In challenging the sentence of life imprisonment, the appellant
contends that the sentence imposed is “shocking
and
inappropriate”
in
that the court
a
quo
erred
by finding no substantial and compelling circumstances to deviate
from the prescribed minimum sentence set out in Section
51(1) of the
Criminal Law Amendment Act
[2]
.
[4]
Dealing with the first ground of appeal referred to above, in
argument, it is submitted on behalf
of the appellant that:
[4.1]
With reference to the cautionary rule relating to single witnesses,
the court
a quo
should have evaluated the evidence of a single
witness with the necessary caution.
[4.2]
The court
a quo
erred in not considering the various material
contradictions in the evidence presented by the respondent, namely:
[4.2.1]
The position of the complainant, according to the second State
witness (the complainant’s mother), when she found
the
complainant being raped by the appellant, compared to the evidence of
the complainant.
[4.2.2]
The complainant contradicted her own evidence relating to where her
mother was at the time of the rape.
[4.2.3]
The complainant contradicted her own evidence as to which of the two
rapes she testified about occurred first.
[4.2.4]
The complainant never testified that she was on the floor when the
appellant raped her. The court
a quo
erred in the inferences
drawn from the words uttered by the complainant to her mother, namely
that the appellant “is on top
of her”, by finding that
the words uttered refer to evidence by the complainant that she was
on the floor when she was raped
by the complainant and secondly that
the complainant changed positions and therefore the complainant was
raped more than once by
the appellant.
[5]
The evidence of the complainant can be summarised as follows:
[5.1]
She was raped by the appellant in the kitchen of the place she was
residing with her mother, the appellant and
her siblings. In
questions posed by the court
a quo
, she testified that
the incident was in August 2014.
[5.2]
In her description of the incident, she testified that she was
holding on to a pole in the kitchen, she was standing
and the
appellant undressed her and inserted his “penis” “in
front” of her (the place she “urinate
by” –
her words).
[5.3]
It was painful and she wanted to run away, but her mother caught the
appellant “red-handed, because she
was sleeping in the
kitchen”. In questions posed by the court
a quo
, she
testified that her mother was in the bedroom sleeping when the
appellant raped her.
[5.4]
She told her mother that her husband “is on top of” her,
and she is a child.
[5.5]
She was raped twice by the appellant, the incident in the kitchen and
once at the appellant’s parental home
in Limpopo. In questions
posed by the court
a quo
, it seems as if the complainant was
confused which incident happened first. However, she testified that
the incident in Limpopo
was the second time the appellant raped her.
Nothing turns on this.
[5.6]
The appellant was wearing her pants when he raped her. In cross
examination she testified that she wore a size
16 and the jeans did
not fit the appellant well, it went up to mid-thigh.
[5.7]
She did not scream because there is bad blood between them and the
neighbours.
[5.8]
During cross-examination she testified that:
[5.8.1]
Although the appellant is not her farther, she respected him and
their relationship was very good, her mother and the appellant
were
always fighting and because of the fighting and appellant not
working, she wanted the appellant to leave them and go and stay
in
Limpopo.
[5.8.2]
According to her, rape means when somebody undresses you forcefully
and wants to “break your virgin” (her words).
[5.8.3]
The pain she felt was not because of the penetration, but because of
a pimple she had in front.
[5.8.4]
She confirms the statement she made before an officer of the South
African Police Services (“SAPS”), and although
the
statement was not read back to her, she confirms the correctness
thereof. According to her evidence, the issues not dealt with
in her
statement and the differences in her evidence compared to the
statement are the result of her forgetting about it. She further
explained that the incident happened a long time ago and the
appellant threatened to kill her “like a dog” if the
incident is reported by her.
[5.8.5]
On questions posed to her why no reference is made in the
complainant’s statement about her holding on to the pole
while
being raped, she testified that she mentioned the “pole”
to one “Mr Ali”. The complainant further
confirmed a
question posed to her by the appellant’s legal representative,
referring to her evidence that she demonstrated
with dolls that she
was laying on her back, that “in other words” she “told
them” that she was laying on
her back while being raped by the
appellant. The State and the appellant’s legal representative
agreed later during re-examination
of the complainant that the
complainant illustrated the rape with dolls to the SAPS official who
took down the complainant’s
statement. According to the
complainant’s explanation she only remembered when she
testified about the incident that
she demonstrated the rape with a
doll.
[5.8.6]
In questions posed to the complainant about her laying on the bed,
she testified that she was not disputing laying on her
back (she
stated that it is the truth) - the time was around “half past
4”. However, she further testified that it
was “a little
bit late”, but she “cannot recall the time it was”.
She further testified that her mother
appeared from the bedroom and
that is when the appellant stopped, but she was unable to clarify
when she lay on the bed, because
it was a long time back and she
cannot recall.
[5.8.7]
She denied that she was falsely implicating the appellant, because
she does not want the appellant to stay with her, her
mother and her
siblings in their home.
[6]
The evidence of the second witness for the State, M[...] D[...] (the
complainant’s mother),
can be summarised as follows:
[6.1]
She found the appellant in the kitchen when he was putting the
complainant down. While he was putting the complainant
down, the
appellant was having sex with the complainant.
[6.2]
She screamed at the appellant and while she was crying, the appellant
came to her and stopped her from crying.
[6.3]
The complainant wanted to run to the street but the appellant
followed her an took her back into the house. The
appellant then
threatened to kill them if they speak to anyone about the incident.
[6.4]
They kept quiet about the incident until the complainant talked about
it to the nurse at school.
[7]
In cross examination M[...] D[...] testified that the complainant was
only dressed in a skirt
when she caught the appellant raping her, the
complainant was not standing holding a pole at the time, and when
asked at the complainant’s
school about the rape incident, she
first “beat around the bush” (her exact words) about the
incident, and only after
being persuaded by the school personnel to
tell the truth, did she end up telling the truth. Although she
confirmed that they were
not happy to reside with the appellant
anymore, and they wanted the appellant to leave, the complainant did
not frame the appellant.
[8]
The evidence presented by the appellant amounts to a bare denial.
However he was not aware that
the complainant’s mother did not
report the rape and that she was not behind the complainant reporting
the rape. The appellant
further testified that the complainant made
up the rape allegations herself. However, according to him the
allegations of rape
premised from the private meetings between the
complainant and her mother.
[9]
The appellant agrees with the statements made in cross-examination,
namely that the complainant
is a special needs child and she is
“retarded”.
[10]
Both the representatives for the appellant and the respondent
correctly referred to the legal principles
and case law dealing with
the relevant issues raised, especially:
[10.1]
The powers of the Court of Appeal to interfere with the findings of
the trial court (S v Francis
[3]
);
[10.2]
The onus on the State to prove its case beyond a reasonable doubt and
if the version of the appellant is reasonably
possibly true, he is
entitled to an acquittal (S v Sithole and Others
[4]
and S v S
[5]
).
[10.3]
The evaluation of evidence presented by children (Woji v Santam
Insurance Co Ltd
[6]
).
[11]
In S v Chabalala
[7]
the Supreme
Court of Appeal held:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of the inherent strengths and
weaknesses, probabilities and improbabilities on both sides
and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt
about the
accused’s guilt.”
[12]
The highlight of the appellant’s case is the contradictions in
the evidence of the complainant compared
to the statement she deposed
to and the evidence of her mother referred to above. The issue
this court is called upon to
adjudicate is whether the court
a quo
correctly found that the respondent has made out a case beyond a
reasonable doubt regardless of the above contradictions. Although
the
trustworthiness of a child depends on various factors, namely, the
child’s power of observation (does the child appears
to be
intelligent enough to observe), the child’s power of
recollection and the child’s power of narration (the ability
to
frame and express intelligent answers), the question to be asked is
whether the child, while testifying, appear to be honest,
namely is
there a consciousness of the duty to speak the truth (Woji v Santam
Insurance Co Ltd
supra
).
[13]
The court
a quo
correctly referred thereto that the evidence
of the complainant should be approached with caution, not only
because the complainant
is a child, but also because she is a child
with special needs. I align myself with the findings of the court
a
quo
when the evidence of the complainant was evaluated, namely:
[13.1]
With reference to the incident of rape itself, the complainant’s
manner of description of the rape is consistent
with a child of her
age and understanding.
[13.2]
She gave a clear account of how she was raped, namely she was
standing holding the pole – this position could
not be a normal
position in a child’s mind.
[13.3]
She testified that the rape was painful. However, it was the pimple
“in front” and not the penetration
that was painful. This
is an honest experience by the complainant and intimate knowledge she
shared without any hesitation.
[13.4]
She confines herself to two incidents of rape, one incident in
Bloemfontein and the other in Limpopo.
[13.5]
She was forthcoming when asked about her relationship with the
appellant and testified that she respects the appellant
and their
relationship was good up until the incident.
[13.6]
She was consistent in her evidence relating to the rape itself, and
when confronted in cross-examination about certain
facts stated in
her statement not testified in examination in chief (her being kissed
by the appellant and her breasts being touched
by the appellant), she
agreed with the facts as true and correct.
[13.7]
She confirmed that she was laying on her back when she was raped by
the appellant, but she cannot remember at what
time exactly this
happened. However, she is persistent that she was standing, holding
the pole when she was raped by the appellant.
[13.8]
Although the complainant wanted the appellant away from their home,
it is clear from the evidence by the complainant’s
mother that
the rape was never reported. The rape only came to light when the
complainant was confronted by the social worker and
the nurse at
school – this confrontation only took place as a result of the
complainants behaviour at school. If the complainant
and her mother
had any motive to frame the appellant, the incident of rape would
have been reported immediately and not in the
manner as testified by
the complainant’s mother.
[14]
I have not been convinced that the court
a quo
erred:
[14.1]
In accepting the evidence presented by the State and rejecting the
evidence of the appellant;
[14.2]
In respect to the finding that the appellant, beyond reasonable
doubt, have raped the complainant.
[15]
I can however not align myself with the finding of the court
a
quo
that
an inference should be drawn that the appellant raped the complainant
more than once on the specific day in August. The evidence
does not
suggest such an inference. Within the meaning of Part I of Schedule 2
to the Criminal Law Amendment Act
supra
a person is raped more
than once by one person if the evidence shows that the accused formed
the intent, after the first rape, to
rape again.
[8]
Mere repeated acts of penetration cannot be equated with separate
acts of rape.
[9]
Accordingly,
the court
a
quo
erred
in convicting the appellant of raping the complainant
more
than once
(own
emphasis). It is, however, undisputed that the complainant was 14
years of age at the time of the rape and furthermore she
was also
mentally disabled. Accordingly, the prescribed minimum sentence of
life imprisonment as per Section 51(1) of the Criminal
Law Amendment
Act
supra
is applicable under the
circumstances set out in Part I of Schedule 2 thereto, namely:
“
(b)
where the victim-
(i)
is a person under the age of 18 years;
…
(iii)
is a person who is mentally disabled..”
[16]
The appellant raised a further ground in its heads of argument,
namely the date of the rape as set out in
the charge sheet differs
from the evidence presented. It should be mentioned, the appellant
never objected to the charge sheet
– this objection transpired
only during argument.
[17]
Section 88 of the Criminal Procedure Act
[10]
deals with a defective charge sheet and provides as follows:
“
Where
a charge is defective for the want of an averment which is an
essential ingredient of the relevant offence, the defect shall,
unless brought to the notice of the court before judgement, be cured
by evidence at the trial proving the matter which should have
been
averred.”
[18]
Although no objection was raised to the charge sheet by the appellant
and no formal request was made to amend
the charge sheet by the
respondent, the evidence presented by the State witnesses clearly
confirmed the date of the rape as being
on or about 14 August 2014.
This date has not been disputed by the appellant during the trial and
consequently is the evidence
undisputed regarding to the date of 14
August 2014. In my view the incorrect date on the charge sheet as to
when the rape occurred
has been cured in terms of Section 88 of the
Criminal Procedure Act referred to above by virtue of the acceptance
by the court
a quo
of the State witnesses’ evidence.
[19]
It follows that the conviction of rape by the court
a quo
does
not stand to be interfered with by this court and that the appeal
against the conviction stands to be dismissed.
[20]
In dealing with the appellant’s second leg of its appeal,
namely sentencing, the appellant relied on
the grounds that life
imprisonment is shockingly inappropriate.
[21]
As referred to in paragraph [14] above, the complainant was not only
14 years of age at the time of the rape
she was also mentally
disabled.
[11]
The conviction
of rape involved the consideration of whether substantial and
compelling circumstances exist which could have caused
the court
a
quo
to
deviate from the minimum mandatory sentence of life imprisonment.
[22]
The court
a
quo
duly
considered the tests enunciated in S v Malgas.
[12]
The court
a
quo
took
into consideration the personal circumstances of the appellant, the
gravity of the offence and the interest of society. Although
the
appellant was a first offender, his personal circumstances did not
warrant a deviation from the minimum sentence, more specifically
considering the impact of the offence on the complainant as set out
in the Victum Impact Report. The aggravating circumstances
outweighed
the factors in mitigation by far.
[23]
Accordingly, I am in agreement with the findings by the court
a
quo
that no substantial and compelling circumstances existed
which could have caused the court
a quo
to deviate from the
minimum mandatory sentence of life imprisonment.
[24]
It follows thus that the appeal against the sentence imposed by the
court
a quo
stands to be dismissed.
[25]
Accordingly the following order is made:
The
appeal against the conviction and sentence is dismissed.
J
J BUYS, AJ
I
concur
C
REINDERS, J
On
behalf of the Appellant: Ms.
V.C.
Abrahams
Legal
Aid South Africa
Bloemfontein
On
behalf of the Second Respondent: Adv N.M. Tshefuta
Office of the Director of
Public Prosecutions
Bloemfontein
[1]
Record,
Notice of Appeal, pages 324 and 325.
[2]
Act
105
of 1997.
[3]
1991 (1) SACR
198
(A) at 204D.
[4]
1999 (1) SACR
585
(W) at 590F.
[5]
2000 (1) SACR
453
(SCA) at 455A-C.
[6]
1981 (1)) SA
1021
(A) at 1028B-D.
[7]
2003 (1) SACR
134
(SCA) at 139I-J.
[8]
See S v
Ncombo 2017 (2) SACR 683 (ECG).
[9]
See S v
Blaauw
1999 (2) SACR 295
(W) at 300A-D and S v Tladi
2013 (2) SACR
287
(SCA) at para
[13].
[10]
Act 51 of 1977.
[11]
See
Section
51(1) of the Criminal Law Amendment Act
supra
read with Part I of
Schedule 2 thereto.
[12]
2001 (1) SACR 469
SCA.