• Law Reports
  • Sehlabaka v S (A104/2021) [2022] ZAFSHC 37 (21 …

Sehlabaka v S (A104/2021) [2022] ZAFSHC 37 (21 February 2022)

85 Reportability
Criminal Law
View PDF SAFLII Source
Share WhatsApp LinkedIn X Email

Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of raping an 8-year-old complainant and sentenced to life imprisonment — Appellant contended that the trial court erred in rejecting his version and that the sentence was shockingly inappropriate — Evidence from the complainant and corroborating medical testimony established the likelihood of penetration — Trial court's credibility findings upheld as there was no demonstrable misdirection — Appeal dismissed, sentence confirmed as appropriate given the seriousness of the offence and the need to protect the interests of the child.

Comprehensive Summary

Summary of Judgment


Introduction


The proceedings were an automatic appeal to the High Court of South Africa, Free State Division, Bloemfontein, following the imposition of a sentence of life imprisonment. The appellant, Paballo Sehlabaka, appealed against both his conviction and sentence. The respondent was the State.


The appellant had been convicted in the Regional Court, Ladybrand of the rape of an 8-year-old complainant, and on 10 October 2018 the regional magistrate imposed the sentence of life imprisonment. Because a sentence of life imprisonment had been imposed, the appellant pursued an automatic appeal to the High Court.


The general subject-matter of the dispute concerned whether the trial court correctly accepted the State’s evidence, rejected the appellant’s bare denial, and found proof beyond reasonable doubt on the charge of rape, and whether the trial court correctly concluded that there were no substantial and compelling circumstances justifying a deviation from the prescribed sentence of life imprisonment.


Material Facts


The complainant was an 8-year-old child, and the appellant was her cousin who was visiting the complainant’s family at the time of the alleged offence. The incident was said to have occurred at the complainant’s parental home, where there was a shack separate from the main house.


According to the complainant’s account (accepted by the trial court), the appellant called her and directed her to go into the separate shack. After following her into the shack, the appellant ordered her to climb onto the bed, removed her dress, tights, and panty, covered her face with a pillow, and inserted an object into her vagina. The complainant did not see the object. After this, the appellant wiped her, gave her R2, and told her to go outside and play. When the complainant attempted to report the incident to her aunt, the appellant interrupted and instructed her to go and play.


It was common cause that the complainant’s mother had been in town on the day of the incident and, upon returning, instructed the appellant to prepare food. It was also common cause that on the following day the appellant sent the complainant to the shack to fetch his phone from a charger, and that the complainant refused to do so.


The complainant’s mother testified that when she asked the complainant why she refused to fetch the phone, the complainant reported that the appellant undressed her in the shack. The appellant was confronted about the allegation and denied it. The complainant’s mother then reported the matter to the police, and the complainant was taken for medical examination.


The medical evidence was provided by Dr Katarina Johanna Gordon, who examined the complainant on 5 December 2017. The doctor observed no physical injuries on the complainant’s body, but recorded genital findings including that the fornix was dilated, the hymen was not intact with swelling around it, and the vaginal canal was dilated and red, with redness extending up into the cervix. The doctor concluded that sexual assault could not be excluded and that the findings made vaginal penetration likely, including deep penetration.


The appellant’s version was a simple denial of the alleged rape. He admitted being present at the home, acknowledged that the complainant’s mother went to town on the day in question, confirmed that he was asked to prepare food, and confirmed that he sent the complainant to the shack to fetch his phone on the following day. He disputed only that he had called the complainant to the shack the previous day and penetrated her vaginally.


Legal Issues


The central legal questions were whether the trial court was correct to convict the appellant on the evidence presented and, in particular, whether the trial court committed any misdirection in its credibility findings and assessment of whether the State proved the appellant’s guilt beyond reasonable doubt despite the appellant’s bare denial.


A further central question was whether the sentence of life imprisonment was properly imposed, including whether the trial court misdirected itself in concluding that there were no substantial and compelling circumstances warranting a lesser sentence, and whether the sentence was shockingly inappropriate or otherwise justified appellate interference.


The dispute primarily concerned the application of legal standards to factual findings, especially the appeal court’s approach to credibility findings and the threshold for interference on appeal, as well as the exercise of sentencing discretion and the limited grounds on which an appeal court may interfere with sentence.


Court’s Reasoning


On conviction, the High Court approached the matter on the basis that factual and credibility findings by a trial court are presumed correct unless shown to be wrong on the record, and that an appeal court may interfere only where there has been a misdirection or where the trial court is shown to have been clearly wrong. It emphasised that the trial court has the advantage of seeing and hearing witnesses, a benefit not available to the appeal court, and that this advantage informs a deferential approach to credibility findings.


Applying these principles, the High Court noted that the appellant’s representative did not successfully challenge the trial court’s conclusion on conviction in oral argument. The High Court further held that the complainant’s evidence was corroborated in material respects by the medical evidence of Dr Gordon, whose findings were described as consistent with traumatic vaginal penetration and making penetration likely. The court also treated the complainant’s account as corroborated by her mother’s evidence regarding the complainant’s report when she refused to go into the shack the following day.


On that conspectus, the High Court found no demonstrable error in the trial court’s acceptance of the State witnesses as truthful and in rejecting the appellant’s version as not reasonably possibly true. It therefore concluded there was no proper basis to interfere with the conviction.


On sentence, the High Court reiterated that sentencing lies pre-eminently within the discretion of the trial court, and that an appeal court should be slow to interfere unless the discretion was exercised unreasonably or the sentence is adversely disproportionate. It referred to the orthodox sentencing approach requiring consideration of the purposes of punishment and a balancing of the crime, the offender, and the interests of society.


In evaluating the seriousness of the offence, the High Court placed weight on the complainant’s vulnerability as a child and the circumstances that the offence was committed by a trusted family member within the domestic setting, in what should have been a safe environment. It also invoked the constitutional imperative in section 28(2) that a child’s best interests are of paramount importance, and characterised the protection of children as a societal duty in which courts, as upper guardian of children, play a central role.


The High Court recorded the appellant’s personal circumstances, including that he was 23 at the time of the offence, 24 at sentencing, a first offender, single, with no children, educated to matric, and earning approximately R2000 per month doing odd jobs. However, it considered there was nothing out of the ordinary in these circumstances and agreed with the trial court that there were no substantial and compelling circumstances justifying deviation from the prescribed sentence of life imprisonment. The seriousness of the offence, particularly the rape of a young child by a trusted relative, was treated as outweighing the mitigating weight of the appellant’s personal circumstances.


Outcome and Relief


The High Court dismissed the appeal against both conviction and sentence. The conviction for rape and the sentence of life imprisonment were upheld. The judgment, as provided, did not record a separate or additional costs order in relation to the appeal.


Cases Cited


The judgment cited and relied upon the following authorities: S v Francis 1991 (1) SACR 198 (SCA) at 204 e–d; R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705–706; S v Pistorius 2014 (2) SACR 315 (SCA) para 30; S v Kebana 2010 (1) All SA 310 (SCA) para 12; S v Rabie 1975 (4) SA 855 (A) at 857D–E; S v De Jager and Another 1965 (2) SA 616 (A); De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2003 (1) SACR 448 (WLD) at 457 para 10; and S v Abrahams 2002 (1) SACR 116 (SCA) para 17.


Legislation Cited


The judgment referred to the Constitution of the Republic of South Africa, 1996, and in particular section 28(2) concerning the paramountcy of a child’s best interests.


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The court held that there was no basis to interfere with the trial court’s credibility findings and factual conclusions, and that the State’s case had been proved beyond reasonable doubt. The appellant’s version of a bare denial was held to have been correctly rejected as not reasonably possibly true, in circumstances where the complainant’s evidence was treated as corroborated by both the first report to her mother and the medical findings supporting likely vaginal penetration.


The court further held that the trial court did not misdirect itself in sentencing, that the sentence of life imprisonment was not shown to be shockingly inappropriate or disproportionate in the circumstances, and that the appellant’s personal circumstances did not constitute substantial and compelling circumstances warranting deviation from the prescribed life sentence for the rape of a minor child.


LEGAL PRINCIPLES


An appeal court approaches a trial court’s factual findings and credibility determinations with deference, recognising the trial court’s advantage in seeing and hearing witnesses. Interference on appeal is justified only where there is a material misdirection or where, on the record, it is shown that the trial court was clearly wrong.


In criminal matters where an accused advances a bare denial, the trial court is entitled to reject that version where, on a proper assessment of the evidence as a whole, it is not reasonably possibly true, and where the State’s case satisfies proof beyond reasonable doubt.


In relation to sentence, the sentencing discretion resides primarily with the trial court. An appeal court may interfere only where the discretion was not exercised judicially, or where the sentence is vitiated by misdirection or is materially disproportionate.


In sentencing for sexual offences against children, the court treated the paramountcy of the child’s best interests under section 28(2) of the Constitution as a significant constitutional consideration, and emphasised the seriousness of sexual violence against children, particularly within the domestic sphere and by persons in positions of trust.

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
>>
2022
>>
[2022] ZAFSHC 37
|

|

Sehlabaka v S (A104/2021) [2022] ZAFSHC 37 (21 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No.:
A104/2021
In the appeal
between: -
PABALLO
SEHLABAKA
Appellant
and
STATE
Respondent
CORAM:
N. M.
MBHELE,
DJP
et
C. VAN ZYL, J
HEARD
ON:
15 NOVEMBER 2021
JUDGMENT
BY:
N. M.
MBHELE,
DJP
DELIVERED
ON:
21 FEBRUARY 2022
[1]
The appellant was convicted by the Regional Magistrate, Ladybrand, of
raping an 8 year old
complainant. He was sentenced to life
imprisonment on 10 October 2018. Aggrieved by the sentence, the
appellant exercised his right
to automatic appeal, due to the
sentence of life imprisonment imposed, and approached this court on
appeal.
[2]
In the notice of appeal, heads of argument as well as submissions
before us,
the
appellant's attack on the conviction returned by the learned Regional
Magistrate in the trial court is premised upon the following
main
contentions: (1) that the learned regional magistrate erred in
rejecting the appellant’s version of bare denial and in finding
that the state succeeded to prove its case beyond reasonable doubt.
In respect of the sentence, the appellant contends that
the
sentence is shockingly inappropriate, that the court
a
quo
did not apply due weight to the personal
circumstances of the appellant and that it overemphasized the serious
of the offence at
the expense of the personal circumstances of the
appellant.
[3]
The appellant is the complainant’s cousin who had visited the
complainant’s family during
the time of the alleged offence. The
complainant testified that she was called by the appellant who
directed her to go into a shack
that was separate from the main house
at her parental home. The appellant followed her into the shack and
ordered her to climb on
the bed. While lying on the bed the appellant
took her dress, tights and panty off.  He thereafter covered her
face with a pillow
and inserted an object that she did not see in her
vagina. He wiped her, gave her R2 and told her to go outside and
play. She tried
to report the incident to her aunt when she saw her
going outside to discard dirty water but the appellant interrupted
her and ordered
her to go and play. Soon thereafter the complainant’s
mother arrived from town and instructed the appellant to prepare food
for
them.
[4]
The following day the appellant sent the complainant into the shack
to fetch his phone,
the complainant resisted. When the complainant’s
mother asked her why she was refusing to fetch the appellant’s
phone from the
shack she reported that the appellant wants to lure
her into the shack so he can undress her. Her mother and the
appellant’s mother
called the appellant in to enquire about the
allegations but he denied.
[5]
The complainant’s mother testified to the effect that on 1 December
2017 she had gone
to town when the alleged incident occurred. On her
arrival from town she found the complainant playing outside. She
asked the appellant
to prepare food for the kids, including
complainant. After eating the complainant went outside and continued
playing. The following
day on 2 December 2017 the appellant sent the
complainant into the shack to fetch his phone, the complainant
refused to fetch the
appellant’s phone. When she asked her why she
refused to fetch the phone she said that the appellant undresses her
when she gets
into the shack. The appellant’s mother called him in
to enquire about the allegations, he denied that he ever undressed
the complainant.
She asked the complainant to undress so she could
see if there were visible injuries, she could not see anything. She
did not touch
the complainant’s vagina during examination. She then
went to the police to report the matter. The complainant was taken
for medical
examination at Senekal Hospital.
[6]
The third witness was Dr. Katarina Johanna Gordon who examined the
complainant on 05
December 2017. She observed no physical injuries on
the complainant’s body.  When she examined her genitals she
noted the
following: The fornix was dilated, the hymen was not intact
and there was swelling around it, the vaginal canal was dilated and
red,
no discharge was seen and the anus was normal. She did not use a
speculum in her examination but she observed a red and slightly
swollen clitoris, the urethral orifice was red and slightly swollen,
the labia majora and minora were normal, the paraurethral folds
were
red. She concluded that sexual assault cannot be excluded, the
evidence, according to her, shows that vaginal penetration was
likely. She concluded that the complainant was penetrated deep into
her vaginal canal up into the cervix because there was redness
up
into the cervix.
[7]
The appellant simply denied the allegations. He confirmed that the
complainant’s mother
had gone to town on the date of the alleged
incident and that when she came back from town she asked him to
prepare food. He, further,
confirmed that he did send the complainant
to the shack to remove his phone from the charger. What he denied was
that the previous
day he called the complainant to the shack and
penetrated her vaginally.
[8]
The trial court evaluated the evidence and came to the conclusion
that the state witnesses
were truthful and rejected the version of
the appellant. It is trite that factual and credibility findings of
the trial court are
presumed to be correct unless they are shown to
be wrong with reference to recorded evidence. The acceptance by the
trial court of
oral evidence and conclusions thereon are presumed to
be correct, absent misdirection.
[1]
A
court of appeal may only interfere where it is satisfied that the
trial court misdirected itself or where it is convinced that the
trial court was wrong.
[2]
[9]
It
is
well established that where a trial judge makes findings on
credibility of a witness, the court of appeal will take into account
that the trial court had the advantage of seeing the witnesses whilst
testifying, which benefit is not available to the court of
appeal.
The powers to
evaluate and appraise evidence belong to a trial court and its
conclusions cannot be interfered with simply because
a court of
appeal would have come to a different finding or conclusion. The
trial court’s advantage of seeing and hearing witnesses
places it
in a better position to assess the evidence than a court of appeal,
and such assessment is sacrosanct unless there is a
clear and
demonstrable misdirection.
T
he
Supreme Court of Appeal held as follows in
S
v Pistorius
.
[3]
'It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong. R v Dhlumayo
and
Another
1948 (2)
SA 677
(A)
at 706; S v Kebana
2010
(1) All SA 310
(SCA)
para 12…. As the saying goes, he
was steeped in the
atmosphere of the trial. Absent any positive finding that he was
wrong, this court is not at liberty to interfere
with his findings.'
[10]
Ms. Abrahams, on behalf of the appellant, was unable to successfully
assail the conviction. She simply
made no oral submissions against
the conclusion by the Regional Magistrate on the conviction.
[11]
The complainant’s evidence finds corroboration in the evidence of
Dr. Gordon whose examination revealed
history of sexual assault and
found that the abnormalities in the vaginal canal of the complainant
were consistent with traumatic
vaginal penetration.
[12]
The complainant’s evidence is also corroborated by her mother whom
she made the first report to. Her
account of events is reliable.
I
am unable to find any demonstrable or clear error on the part of the
trial court to justify interference with its credibility findings.
The trial court was correct in its assessment of evidence and
credibility findings. I cannot find that the trial court erred in
finding
that the appellant’s version is not reasonably possibly
true and  fell to be rejected.
[13]
The sentencing powers are pre-eminently within the judicial
discretion of the trial court; the court
of appeal should be careful
not to erode such discretion. The court sitting on appeal will
interfere if the sentencing court exercised
its discretion
unreasonably or in circumstances where the sentence is adversely
disproportionate.
[4]
[14]
When sentencing, the court must consider the main objectives of
punishment, being the prevention of crime,
retribution, the
deterrence of criminals, and the reformation of the offender.
Simultaneously, the court must strike a balance between
the crime,
the offender and the interest of society.
[15]
The offence committed by the
appellant is undoubtedly a serious one. The complainant considered
the appellant as her brother. The
complainant trusted him and he, in
turn, took advantage of her fragile state.
The
complainant was violated in the sanctity of her own home. She was
betrayed by someone she trusted and revered. This happened in
a place
she considered her sanctuary, where she was supposed to feel safe and
cared for.
[16]
Section 28 (2) of the Constitution of South Africa
[5]
provides that a child’s best interests are of paramount importance
in every matter concerning the child. The Constitution demands
that
the best interest of a child must take a centre stage whenever an
issue concerning a child comes to the fore.
It
is the single most important factor to be considered when balancing
or weighing competing rights and interests concerning children.
All
competing rights must defer to the rights of children unless
unjustifiable. Whilst children have a right to
inter
alia
,
protection from maltreatment, neglect, abuse or degradation, there is
a reciprocal duty to afford them such protection. Such a duty
falls
not only on law enforcement agencies but also on right thinking
people and, ultimately the court, which is the upper guardian
of all
children.
[6]
[17]
It is
clear from the
above
dictum
that the society as a whole, including the court as the upper
guardian, have a duty to ensure that children are safe from harm and
grow up in nurturing environments. The society has pinned its hopes
on the courts to deal with their tormentors.
[18]
In
S
v
Abrahams
[7]
Cameron
JA remarked as follows with regards to sexual violation of minor
children in the domestic sphere.
“
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.”
[19]
It is clear from the above
dicta
that the rape of minor children must be viewed in a serious light,
worse if
committed by those entrusted with the care and safety of the child.
Home is supposed to be a place where children are cared
for and
protected. S
exual
abuse in
the
domestic
sphere is not the type that victims can easily escape from. It
thrives on intimidation and blackmail. The victims have to
live with
their predator, see them every day and disguise their pain. It is
clear that the appellant would have continued with his
criminal
conduct had the complainant not blown the whistle on time.
[20]
The appellant was 23 at the
time of the commission of the offence and 24 years old during
sentencing. He was a first offender, single,
with no children and
went to school up to matric. He was doing odd jobs earning R2000 per
month. The court found no compelling and
substantial circumstances
warranting deviation from the prescribed minimum sentence of life
imprisonment.
[21]
S
entence
must be tailored to suit the offender, the crime and the
circumstances surrounding the case and punishment must be
proportionate
to the offence. Although the appellant was relatively
young and in his early stages of adulthood his actions must be
frowned upon.
The offence he committed calls for a lengthy jail
sentence. He brutally took away the innocence of a young child.
[22]
There is nothing out of the ordinary with the appellant’s personal
circumstances.
When weighing up the
mitigating factors against the aggravating circumstances, this matter
as well as the interest of community, I
am not persuaded that there
is a just cause to interfere with the sentence imposed by the trial
court.  The appeal ought to
fail.
[23]
I make the following order:
ORDER
1.
The appeal against conviction and sentence is
dismissed;
2.
The conviction and sentence are upheld.
N.M. MBHELE, DJP
I
concur.
C. VAN ZYL, J
Appearances:
For the
Appellant:

Ms. V. Abrahams
Instructed by
Legal Aid South
Africa
Bloemfontein
For the
Respondent:

Adv. L. B. Mpemvane
Instructed by
Director Public
Prosecutions
Bloemfontein
[1]
S
v Francis
1991 (1) SACR 198
(SCA) at 204 e-d.
[2]
R
v
Dhlumayo
&
another
1948 (2) SA 677
(A) at 705-706.
[3]
S
v Pistorius
2014
(2) SACR 315
(SCA) par 30.
[4]
S
v Rabie
1975 (4) SA 855
(A) at 857 D-E; also S v De Jager and
Another 1965 (2) SA 616 (A).
[5]
The
Constitution of the Republic of South Africa, 1996.
[6]
De
Reuck v DPP WLD
2003 (1) SACR 448
(WLD) at 457 par 10.
[7]
S
v Abrahams
2002
(1) SACR 116
(SCA) at par 17.

Back to Law Reports