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2023
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[2023] ZAECMKHC 72
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M.M v S (CA224/2021) [2023] ZAECMKHC 72 (23 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: CA224/2021
In
the matter between:
MM Appellant
and
THE
STATE Respondent
APPEAL
JUDGMENT
Bloem
J
[1]
This
appellant was charged in the regional court sitting at Aliwal North
with rape, in contravention of section 3 of the Criminal
Law (Sexual
Offences and Related Matters) Amendment Act.
[1]
It was alleged that on 22 September 2019 and at Aliwal North he had
raped a ten-year-old girl by inserting his penis into her vagina.
Despite his plea of not guilty, he was found guilty as charged and
sentenced to imprisonment for life. He now appeals against both
conviction and sentence by virtue of the automatic right of appeal
afforded him in terms of section 309(1)(a) of the Criminal Procedure
Act.
[2]
[2]
The state called the complainant and her mother and the appellant
testified
in his own defence. It is common cause that, for
approximately three to four months before the alleged incident, which
is the subject
matter of the appeal, the complainant, her younger
sister, her mother and the appellant shared a dwelling consisting of
a kitchen
and bedroom. The appellant and the complainant’s
mother were in a love relationship. He was not the father of the
complainant
or her sister, although the complainant viewed him as a
good father.
[3]
The complainant testified that after having had supper on the evening
in question,
her mother went to look for the appellant. She and her
sister were left alone at home. Later that evening the appellant
knocked
on the door and she opened from the inside. After the
appellant had entered the house, she returned to bed, which was on
the floor.
She shared the bed with her sister who was asleep at the
time. The appellant asked where her mother was. She told him that she
had gone to look for him. Although he had initially asked her for
food, he dished up for himself. After eating, he switched off
the
light. He climbed under the blankets where she was, lifted her dress
and pulled down her panty. By then, his pants were already
down. He
inserted his penis into her vagina and had sexual intercourse with
her. She screamed and asked him to get off her, but
he covered her
mouth with his hand. She attempted to pushed him off her, but failed.
He assured her that he would not hurt her.
When he was done, he got
up, walked away and returned with a washing rag with which he wiped
her and his private parts. He threatened
to kill her if she told
anyone that he had had sexual intercourse with her. He went to sleep
on a bed which he shared with her
mother. She was waiting for her
mother but eventually fell asleep. She woke up when her mother
knocked on the door, which the appellant
opened. Her mother enquired
from the appellant whether he wanted food. He declined the offer of
food. Her mother went to bed. She
fell asleep.
[4]
When the appellant left the house the following morning, she made a
report to
her mother as to what the appellant had done to her the
previous evening. When the appellant returned, she stopped making a
full
report to her mother, who said she was going to look for
tobacco. Her mother then left the dwelling. The police arrived not
long
thereafter and took her and her mother to hospital where she was
medically examined. The appellant was arrested on a charge of rape
on
that day.
[5]
The complainant’s mother testified that she and the appellant
had agreed
that, after preparing supper for the family, she would go
to the house of the appellant’s sister, where he was going to
have
some drinks. The idea was for him to have a meal at home. Before
she left home at about 21h00, she told her two daughters to lock
themselves in the house and not open the door, except for herself or
the appellant. She then set off but did not find the appellant
at his
sister’s home. After knocking at the door at home, the
appellant opened the door. Upon her enquiry, he informed her
that he
had already eaten. She laboured under the impression that her
daughters were sleeping. She and the appellant went to bed.
[6]
The following morning, after the appellant had left the dwelling to
relieve
himself, the complainant told her that the appellant had
raped her during the previous evening. The appellant returned before
the
complainant had made a full report to her. She left the house
and, with the assistance of her maternal aunt, she called the police.
She returned to the dwelling. Shortly thereafter the police arrived.
It was only when they were at the hospital that the complainant
told
her in detail what the appellant had done to her the previous
evening. After the evidence of the complainant’s mother,
the
medical report that Dr Vuyo Ntaba completed after he had examined the
complainant on 22 September 2019, was handed into court
by agreement
as evidence. Dr Ntaba observed a torn hymen, streaks of bleeding in
the complainant’s vagina, inflamed labia
minora and concluded
that those factors would be suggestive of vaginal penetration. The
state then closed its case.
[7]
The appellant testified that upon his return home after 21h00 on the
evening
in question, he opened the door, which was closed but not
locked. He enquired from the complainant where her mother was. The
reply
was that her mother had gone to look for him. He went looking
for the complainant’s mother but did not find her. He returned
home at approximately 22h00. He then had a meal, which the
complainant’s mother had prepared. He undressed himself and
went
to bed. The complainant’s mother arrived at approximately
23h00. He opened the door for her but did not make any enquiries
as
to where she had been. They went to bed.
[8]
When he woke up the following morning, he went to relieve himself
outside. Upon
his return, the complainant’s mother took his
cell phone and went outside, saying that she was going to get
something to
eat from her aunt. Not long after her return, the police
arrived. He was still in bed. The complainant’s mother called
her
to tell the police what the appellant had done to her. The
complainant did not say anything to the police in his presence. The
police questioned the complainant after which they placed the
appellant under arrest. The appellant denied that he had raped the
complainant.
[9]
The magistrate found that the complainant and her mother were
credible and reliable
witnesses. She found that the complainant’s
version was supported in material respects by her mother’s
evidence as
well as the medical evidence. The magistrate also warned
herself about of the dangers inherent in the evidence of a child and
a
single witness and applied the cautionary rule applicable thereto.
The magistrate also had regard to the good relationship between
the
appellant on the one hand and the complainant and her sister on the
other hand, and that they loved and trusted him. The magistrate
found
that the appellant’s bare denial was so improbable in the light
of all the facts that it cannot be said to be reasonably
possibly
true. The magistrate accordingly rejected his evidence as false.
[10]
In
S
v Hadebe and others
[3]
the well-established principles governing the hearing of appeals
against findings of fact were restated. They are that, in the
absence
of demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct. Those findings
will only
be disregarded if the recorded evidence shows them to be clearly
wrong.
[11]
It has not
been argued that the trial court misdirected itself. The main
submission made on behalf of the appellant was that there
was a
possibility that the appellant was falsely implicated by the
complainant with her mother’s support. Counsel submitted
that,
because the complainant and her mother are related, “
there
are chances that they can agree to falsely implicate the appellant
”.
In
S v
Ipeleng
[4]
the dangers of convicting an accused person on the basis that he
cannot advance any reason why the state witnesses would falsely
implicate him were highlighted. Mahomed J (as he then was) held that
an accused person bears no onus to provide any such explanation.
That
is so because the true reason why a state witness seeks to give the
evidence he does is often unknown to the accused and sometimes
unknowable. Many factors influence prosecution witnesses in insidious
ways.
[12]
An analysis of the evidence shows that until approximately 21h00 on
the evening in question, the complainant
and her sister were in the
company of their mother. They were alone after her departure until
the appellant’s arrival. That
evidence is common cause. The
appellant testified that the complainant and her younger sister
trusted him. Had the complainant
been sexually assaulted by a person
before the appellant’s arrival, the complainant would in all
probability have made a
report of such assault on her to the
appellant, because she trusted him. That did not happen. Assuming, on
the appellant’s
version, the complainant was sexually assaulted
by a person after the appellant had left to look for the
complainant’s mother,
the probabilities are once again
overwhelming that the complainant would have made such a report to
him. She did not. The probabilities
favour the complainant’s
version that she was sexually assaulted by the appellant upon his
arrival at home, whereafter he
wiped her and himself before going to
bed. The complainant’s delay in making a report to her mother
is also understandable.
On her version, the appellant threatened to
kill her if she told anyone about the rape. She accordingly did not
make a report to
her mother when she returned home on the evening in
question, albeit that she was awake when her mother arrived at home.
She made
a report to her mother the following morning when the
opportunity presented itself. The fact that she did not give a full
report
to her mother while they were at home is indicative of the
fact that both she and her mother took the appellant’s threat
seriously, hence her mother’s unusual way of alerted the police
to the incident.
[13]
Since the appellant did not allege or prove that the magistrate
misdirected herself, and since the
record reflects that each finding
made by the regional magistrate is supported by the facts, the appeal
against conviction must
be dismissed.
[14]
In mitigation of sentence, the magistrate was informed that the
46-year-old appellant has two children
who are 16 and 17 years old
respectively. Prior to his arrest, he was doing odd jobs as a
bricklayer and also performing garden
services from time to time,
earning approximately R1 200 per month. The appellant also admitted
his previous convictions. On 14
December 1992 he was convicted of
theft in respect whereof sentence was postponed for five years. On
26 March 1999 he
was convicted of assault with intent to do
grievous bodily harm and sentenced to 180 days’ imprisonment.
On 15 January 2007
he was convicted of selling drugs and sentenced to
a fine of R300 or 30 days’ imprisonment. On 26 February
2007 he was
convicted of housebreaking with intent to steal and theft
and sentenced to 10 months’ imprisonment. On 19 January 2007 he
was convicted of unlawful possession of drugs and sentenced to pay a
fine of R200. On 24 March 2010 he was convicted of two counts
of
unlawful possession of drugs and sentenced to a fine of R300 or 30
days’ imprisonment. On 11 April 2011 he was convicted
of rape
committed on 6 July 2008 and sentenced to 15 years’
imprisonment.
[15]
In
S
v Bogaards
[5]
it was held that:
“
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court's power to interfere with sentences imposed
by courts below is
circumscribed. It can only do so where there has been an irregularity
that results in a failure of justice; the
court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it. A court of appeal can
also impose a different sentence when it
sets aside a conviction in
relation to one charge and convicts the accused of another
.”
[16]
The magistrate considered the appellant’s circumstances. She
also considered firstly, that rape
was a serious offence; secondly,
the circumstances under which the rape in this case was committed,
namely that a person who the
complainant trusted and loved, raped her
in the safety of her home where she was sleeping next to her younger
sister; and thirdly,
the consequences of the rape on the complainant.
The magistrate also took into account that the appellant showed no
remorse for
the offence that he has committed approximately five
months after he had been released on parole for another rape. The
appellant
served eight years of the 15 years’ imprisonment
before he was released on parole. The magistrate concluded that the
previous
sentence in respect of the count of rape had no impact
whatsoever on him. The magistrate found that there were no
substantial and
compelling circumstances which would justify the
imposition of a lesser sentence then imprisonment for life. She
accordingly imposed
that sentence.
[17]
I have been unable to find any fault with the magistrate’s
findings or conclusions in respect
of the sentence that she imposed
on the appellant. Regard being had to the circumstances under which
the complainant was raped,
I am of the view that the sentence imposed
by the magistrate was fair towards the interests of society and the
appellant’s
personal circumstances. In the circumstances, the
appeal against sentence should also be dismissed.
[18]
In the result, the appeal against conviction and sentence is
dismissed.
GH
BLOEM
Judge
of the High Court
I
agree.
OH
RONAASEN
Acting
Judge of the High Court
For
the Appellant: Mr
MT Solandi, instructed by Legal Aid
South Africa, Makhanda.
For
the State: Mr
T Soga of the office of the Director of
Public Prosecutions,
Makhanda.
Date
heard: 17
May 2023.
Date
of delivery: 23
May 2023.
[1]
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007 (Act 32 of 2000).
[2]
Criminal
Procedure Act, 1977 (Act 51 of 1977).
[3]
S
v Hadebe and others
1997
(2) SACR 641
(SCA) at 645e-f.
[4]
S
v Ipeleng
1993
(2) SACR 185
(T) at 189c-d.
[5]
S
v Bogaards
2013
(1) SA 1
(CC) at para 40.