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[2023] ZAFSHC 37
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Lesoetsa v S (A69/2022) [2023] ZAFSHC 37 (16 February 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A69/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the Appeal between:
THABO
ENOCK LESOETSA
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
et
DANISO, J
HEARD
ON:
17 OCTOBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
16 FEBRUARY 2023
[1]
On 6 February 2019 the appellant was convicted by the regional
court after pleading not guilty for raping his 9-year-old niece. He
was subsequently sentenced to life imprisonment the court having
found
no
substantial and compelling circumstances warranting a deviation from
the minimum sentence prescribed in terms of the Criminal
Law
Amendment Act 105 of 1997 (the CLAA).
[2]
The appellant is aggrieved by both the conviction and sentence. He
challenges his
conviction and sentence on the grounds that in
convicting him, the trial court erred in:
2.1.
finding that the complainant was a credible witness;
2.2.
drawing a negative inference of the appellant’s version and not
making a credibility finding
in favour of his testimony; and
2.3.
finding that the state proved its case beyond reasonable doubt.
[3]
As regards the sentence, the appellant contends that:
3.1.
the sentence is shockingly inappropriate and induces a sense of
shock;
3.2.
the severity of the offence was overemphasized at the cost of the
personal circumstances of the
appellant; and
3.2.
the court erred in finding that there were no compelling and
substantial circumstances present
to deviate from the minimum
sentence.
[4]
It is settled that the appeal court will not interfere with or tamper
with a trial
court’s judgment or decision regarding either
conviction or sentence unless, it (the court of appeal) finds that
the trial
court misdirected itself as regards its findings of facts
or the law. See
R
v Dhlumayo & Anothe
r
1948
(2) SA 677
(A).
The
principle was
also
restated
in
AM
& Another v MEC Health, Western Cape
2021(3)
SA 337
(SCA)
at paragraph 8.
[5]
The appellant was convicted on the testimony of the complainant, her
mother, Mrs J[...]
N[...] T[...] (her first report) and that of the
medical doctor Dr Olgali Denameseres Odien Puerto who examined the
complainant
after the incident.
[6]
The complainant’s evidence was the following: the appellant is
her uncle. It
was in the morning or during the day of the 3rd January
2018 when the appellant arrived at the complainant’s home to
ask
for medicine. After he was given the medication he went back to
his house. The complainant was then informed by her brother that
the
appellant was looking for her. She went over to his house but he sent
her away and told her to return alone. The complainant
went to her
friend’s place, but the appellant went and called her. When she
went back to his house he asked her to massage
his waist and after
she was done, he went to his bedroom took off his clothes and came
wearing only an underwear. He lay down on
the mattress on the kitchen
floor. He then grabbed her, threw her on the floor and shove a piece
of cloth into her mouth. He undressed
her by removing her purple
shorts and a panty. He also took off his underwear, parted her
vaginal lips, climbed on top of her,
penetrated her with his penis
and raped her. When she screamed he closed her mouth with the cloth
and then he stood up and got
dressed. He wiped her vagina with a
cloth and told her not to tell anyone what had happened especially
her mother and he will give
her R10.00. The complainant went home and
spontaneously reported that she was raped to her mother.
[7]
The complainant’s mother corroborated the complainant’s
first report of
the rape incident. She told the court that the
appellant is her “brother”, their mothers are siblings.
On the day of
the incident, the complainant came home running and
whispered into her ear that the appellant had just raped her. She was
so startled
and started to scream with the result that her husband
also heard what was said. The complainant’s father went to the
appellant’s
home to confront him, followed by the complainant’s
mother. The appellant denied raping the complainant, the
complainant’s
mother went home to get her phone in order to
call the police. When she returned to the appellant’s residence
he was nowhere
to be found. The complainant was accompanied to the
police station to report the matter, thereafter she was taken for a
medical
examination at National Hospital where she was admitted.
[8]
On the next day, the complainant was examined by Dr Puerto who also
completed the
medical report J88 handed in as Exhibit “B”.
The gynaecological examination indicated vaginal injuries consisting
of
redness and swelling on the
labia minora
and the posterior
f
ourechette
. The injuries were found to be consistent with
sexual penetration.
[9]
According to the complainant and her mother, the relationship between
them and the
appellant has always been cordial. The appellant visited
the complainant’s family regularly and the complainant’s
mother
also took care of the appellant whenever he was not well and
even accompanied him to the clinic.
[10]
At the time of the incident, the appellant was HIV positive. Exhibit
“D” is a copy
of the appellant’s medical file. It
was handed in by concurrence of the State and the defence.
[11]
The appellant was the only witness who testified for the defence. He
confirmed the State’s
version only as far as it related to his
visit to the complainant’s home to seek pain medication. He
told the court that
the medication that he was given did not provide
him with relief as a result, he sent the complainant’s brother
to the shops
to buy him pain medication and went back to his house
where he laid down on a mattress that he had placed in the kitchen.
It was
his testimony that he did not rape the complainant, she did
not even come to his house, the rape charge was fabricated by the
complainant’s
family as a result of the feud between him and
the complainant’s mother over the family house.
[12]
In the record of the proceedings it is clear that the trial court was
confronted with mutually
destructive versions with regard to whether
the appellant raped the complainant or not. The trial court was alive
to the fact that
as a child witness and also a single witness
implicating the appellant in the rape offence the complainant’s
evidence had
to be approached with caution.
[13]
In
terms of section 208 of the Act an a
ccused
may be convicted of any offence on the evidence of any competent
single witness. The
court
need only find that the evidence was trustworthy and that the truth
has been told in that case, corroboration is not even
necessary. See
S
v Sauls and Others
1981
(3) SACR 172
(A)
at
173 and S v Mahlangu
2011
(2) SACR 164
(SCA)
at 171 B.
[14]
The trial court undertook a thorough analysis of the evidence
proffered and having appropriately
applied cautionary rule to the
complainant’s evidence, the trial court was satisfied that the
complaint’s evidence
was satisfactory in all material respects
and could be safely relied upon as the truth of what she alleged and
this was based on
the grounds that she was able to describe in detail
the circumstances under which the rape took place namely; what
she and
the appellant wore on that day; where exactly in his house
did the rape occur; how he undressed her and himself. The
manner
in which she was raped was also concisely described including
with the use of the anatomically correct dolls. The trial court was
satisfied that she could not have made up those details and that her
evidence was also corroborated in all material respects by
that of
her first report and the J88 medical evidence.
[15]
Regarding the contradictions, the trial court found that the
contradiction between the evidence
of the state witnesses relating to
whether the appellant had used a condom or not when raping the
complainant was immaterial, it
was merely an error resulting from a
language issue rather than an incorrect exchange of information as
the doctor was of Spanish
origin with limited understanding of South
African Languages.
[16]
I am in agreement with the trial court’s conclusions. A child
witness’s veracity
and ability to give a succinct version of
the events is an important consideration in applying the cautionary
rule.
[1]
It is also important to
note that her version remained intact even after vigorous
cross-examination.
[17]
The trial court’s finding that the contradictions between the
State’s witnesses were
immaterial cannot be faulted as the
issue of whether the appellant wore a condom or not during the rape
was not relevant for the
determination of whether the appellant raped
the complainant or not. It has been said that if the evidence
satisfied the standard
of proof, the court must convict even if there
were some discrepancies between the complainant’s evidence and
that of the
other witnesses.
[2]
In
J
v
R
[3]
it was held that:
“…
the
exercise of caution should not be allowed to displace the exercise of
common sense. If a judicial officer, having anxiously
scrutinized such evidence with a view to discovering whether there is
any reasonable possibility of conscious or unconscious fabrication,
is satisfied that there is no such possibility and that the evidence…
may … be safely accepted as proving the guilt
of the accused
beyond reasonable doubt, he should not allow his judgment to be
swayed by fanciful and unrealistic fears.”
[18]
On the other side, the appellant’s version was rejected as
false beyond a reasonable doubt
on the grounds that despite the
State’s overwhelming evidence against him his version was
simply a bare denial and that his
defence of false implication was
merely a fabrication designed to mislead the court. The trial court
took into account that the
version was never put to the State
witnesses during cross-examination, the appellant could not even
remember when the dispute arose.
The other version that he gave was
that his father had resolved the dispute. Furthermore, the evidence
by the complainant and her
mother that before the incident they had a
very good relationship with the appellant, the complainant’s
mother even took
care of the appellant when he was sick, was not
disputed; therefore, to accept the appellant’s version would
mean that Dr
Puerto was also involved in this conspiracy as her
evidence also corroborated the complainant’s evidence and that
was highly
improbable.
[19]
It is a trite principle that there was no obligation on the appellant
to prove his innocence
and having elected to provide a version of his
defence, his version ought to have been reasonably possibly true to
warrant an acquittal.
The version provided by the appellant did not
pass muster. The fact that the complainant reported the rape
immediately to her mother
when she arrived home militated against the
appellant’s claim of false implication as there was not enough
time for the complainant
to contemplate the purported false charges
including her parents for that matter. The medical evidence
corroborates her testimony
that she was sexually penetrated barely a
day after the incident. Furthermore, it is trite that if a party
wishes to lead evidence
to contradict an opposing witness, he should
first cross-examine the witness upon the facts which he intends to
prove in contradiction,
so as to give the witness an opportunity for
explanation. Similarly, if the court is to be asked to disbelieve a
witness, that
witness should be cross-examined upon the matter which
it will be alleged to make his case unworthy of credit. It is highly
irregular
to let a witness’ evidence go unchallenged in
cross-examination and afterwards argue that they must be disbelieved.
[20]
The discrepancies in the appellant’s version affected his
credibility. The trial court
correctly rejected it as false. I am
thus satisfied that on the available facts, the dispute between the
State and the defence
with regard to whether the appellant had raped
the appellant on that day was resolved appropriately. See also S
v
Trainor
2003(1) SACR 35
(SCA) at para 9.
[21]
The trial court correctly found that the State had proved the guilt
of the appellant beyond a
reasonable doubt, he was correctly
convicted.
[22]
It is common cause that in terms of section 51(1) of the CLAA
life
imprisonment is the
prescribed sentence in respect of the
offence the appellant was convicted of, unless the trial court found
substantial and compelling
circumstances justifying a lesser
sentence.
[23]
It is the appellant’s case that the trial court erred in its
conclusion that there were
no substantial and compelling
circumstances justifying a lesser sentence than life imprisonment
because, it underemphasized the
appellant’s personal
circumstances and the fact that no serious injuries were sustained by
the complainant, including the
fact that there was no evidence that
the complainant sustained any lasting trauma; instead, the trial
court overemphasized the
aggravating factors, the prevalence of the
offence, his HIV status at the time of rape and the interests of the
community. It was
argued on behalf of the appellant that this rape
was not one of the most serious rapes where a sentence of life
imprisonment would
be appropriate, the sentence must therefore be
reduced to 15 years’ imprisonment.
[24]
The appellant’s personal circumstances as recorded by the trial
court namely that;
24.1
He
was
41 years old;
24.2
He had passed grade 8;
24.3
He was married with two minor children aged 10 and 6 years;
24.4
Employed at a construction company and also self employed as a
Sangoma earning R8 000.00
and R1000.00 per month respectively;
24.5
He was in good health despite the fact that he was afflicted with the
HIV disease; and
24.6
He was a first offender in relation to this offence.
[25]
The trial court found that the appellant’s personal
circumstances paled in comparison to
the following aggravating
factors: the age of the complainant at the time of the rape, that at
such a tender age of 9 years old
she was raped by a person who was
HIV positive thus exposed to the HI virus, that as her uncle, the
appellant was entrusted in
his care. The trial court took into
account the fact that because at the time of the rape the appellant
was aware that he was HIV
positive made the offence the worst
category of rape.
[4]
[26]
It is trite that the traditional mitigating factors such as the
offender’s personal circumstances
cumulatively, can be taken
into account as factors to be considered as substantial and
compelling circumstances; however, they
must be weighed against the
aggravating factors as on their own they constitute the flimsy
reasons which
Malgas
[5]
warned should not be elevated to the status of substantial and
compelling circumstances to deviate from the prescribed minimum
sentence.
[27]
In this matter, there is a number of aggravating factors namely, the
age of the complainant and
the circumstances under which she was
violated. At the tender age of 9 the complainant was raped by
her own uncle, the person
who was supposed to protect her by virtue
of him being in a position of trust and also similar to that of a
parent.
[28]
It is equally aggravating that the appellant raped
this child well aware of his HIV status thereby exposing
her to the
virus.
[29]
The
gravity of sexual violations of children in the domestic sphere was
succinctly summed up by Cameron JA in
S
v Abrahams
[6]
as
follows:
“
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.”
[30]
These
crimes cause an outrage in the society. A failure by our courts to
respond appropriately could result in vigilantism which
undermines
our constitutional order, it is for this reason that the sentences
that the courts impose must have an element that
speaks to the plight
of the society.
[7]
[31]
The appellant’s complaint that the trial court overlooked the
fact that the complainant
did not sustain any serious injuries or
lasting trauma is unsound when regard is had to the provisions of
section 51(3) of the
CLAA which specifically states that on its own,
the absence of serious physical injuries does not constitute
substantial
and compelling circumstances justifying the imposition of a lesser
sentence. See also
S
v Nkawu.
[8]
[32]
Lack
of serious physical injuries does not make the crime less heinous.
Rape leaves the victims with life-long emotional and psychological
scars.
In
fact, the SCA recently “took counsel to task” for exactly
this evidently erroneous contention. See
Maila
v The State,
[9]
quoting
A
manda
Spies ‘Perpetuating Harm: Sentencing of Rape Offenders Under
South African Law’
(2016)
(2)
SALJ
389
at 399
Mocumie
JA said:
“
[47]
Counsel for the appellant
submitted that the trial court did not take into
account
the appellant’s personal circumstances. It also, according to
counsel, did not take into account that this was not
one of the
‘brutal cases’, as the complainant was not physically
injured. Counsel was taken to task during the exchange
with the
members of the bench on this submission, but he could not take the
argument further. Correctly so,
because
apart from this minimising the traumatic effects of rape on any
victim and more so a child, it is well documented that ‘irrespective
of the presence of physical injuries or lack thereof, rape always
causes its victims severe harm.”
[48]
The Legislature has specifically amended the
Criminal Law Amendment
Act to
provide categorically that the fact that a complainant was not
injured during a rape cannot be considered as compelling or
substantial.
In terms of
s 51(3)
(aA) of Act 105 of 1997, which
came into operation in December 2007:
‘
When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
…
.
(ii)
an apparent lack of physical injury to the complainant;
…
.
(iv)
any relationship between the accused person and the complainant prior
to the offence being
committed.”
[33]
The appellant has deliberately overlooked the Victim Impact
Statements submitted to the trial court
by the complainant and her
mother as Exhibit ‘F” and “G” respectively.
Both the complainant and her mother
allude to both the emotional
trauma and the physical ailments arising from the rape incident. The
complainant has developed a fear
of playing with other children, to
go to school and to the shops. She is overwhelmed with sadness as a
result of what the appellant
did to her whilst she still loves him as
her uncle and her mother’s brother.
[34]
The complainant’s mother relates how she has been left with
self-blame and anger, sometimes
she thinks about leaving all behind.
She now suffers from constant headaches and has lost weight. She has
noticed behavioral changes
in the complainant and her siblings. The
complainant has become moody, stubborn and angry. Her brothers are
mistreating the complainant;
they refuse to play with her or share
their bedroom with her. They also seem to be blaming her for the
rape.
[35]
The nature and the seriousness of a rape of a child can never be over
emphasized.
In
S
v D
1995(1)
SACR 259
(A) it was held that:
“
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those
who think
they can get away with it, and all too often do. …
”
Appellant’s
conduct in my view was sufficiently reprehensible to fall within the
category of offences calling for a sentence
both reflecting the
courts disapproval and hopefully acting as a deterrent to others
minded to satisfy their carnal desires with
helpless children.
[10]
[36]
Having regard to the
seriousness,
despicable and endemic nature of the offence the appellant was
convicted of
, I am of the view
that the trial court exercised its discretion properly and judicially
by imposing the sentence of life imprisonment.
[37]
In the circumstances, the
following
order is issued:
1.
The appeal against conviction and sentence is dismissed.
NS
DANISO, J
I
concur
C
VAN ZYL, J
On
behalf of Appellant:
Mr PL van der Merwe
Instructed
by:
Legal Aid SA
BLOEMFONTEIN
On
behalf of respondent:
Adv AM Ferreira
Instructed
by:
Director of Public Prosecutions
BLOEMFONTEIN
[1]
S v
Sauls
1981
(3) SA 172
(A) at
180E – G and
Woji
v Santam Insurance CO Ltd
1981
(1) SA 1020
(
A)
at 1028B-C.
[2]
R
v Abdoorham
1954
(3) SA 163
(N)
at 165E;
Sauls
supra
at fn 1 at 180E-F.
[3]
1958
(3) SA 699
(SR).
[4]
S
v Snoti
2007
(1) SACR 660
(E).
[5]
Malgas
supra para 9.
[6]
2002
(1) SACR 116
(SCA)
at page 123 at para 17.
[7]
S
v Mhlakaza and Another
1997
(1) SACR 515
(SCA)
at 519d-e.
[8]
2009
(2) SACR 402
(ECG)
at para 17.
[9]
(
429/2022)
[2023]
ZASCA 3
delivered on 23 January 2023.
[10]
At
page 260 f-g.