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Nkoto v S (A44/2021) [2022] ZAFSHC 94 (12 May 2022)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Conviction and sentence — Appellant convicted of two counts of rape of minor children and sentenced to life imprisonment — Appeal against conviction and sentence based on alleged misdirections by trial court regarding evidence and sentencing principles — Trial court's assessment of credibility of child witnesses upheld as reasonable — No material misdirection found in trial court’s handling of evidence or sentencing discretion — Appeal dismissed.

Comprehensive Summary

Summary of Judgment


1. Introduction


These proceedings were an automatic appeal to the High Court of South Africa, Free State Division, Bloemfontein, against both conviction and sentence imposed by the Bloemfontein Regional Court. The appellant was Lepita Lazaro Nkoto, and the respondent was the State.


The appellant had been convicted on 9 December 2020 on two counts of rape involving two minor children, and was sentenced on 25 January 2021 to life imprisonment. The appeal was heard by Naidoo J and Daniso J, with judgment delivered on 12 May 2022.


The dispute concerned whether the trial court correctly concluded that the State proved the appellant’s guilt beyond reasonable doubt, given alleged contradictions in the State’s evidence and the young age of the complainants, and whether the trial court properly imposed the prescribed sentences (including whether substantial and compelling circumstances existed to justify a lesser sentence).


2. Material Facts


The appellant was employed as a herdsman for a neighbour of the complainants and was known to the complainants and to the first report witness, Ms M[....] S[....] K[....]. The rapes were alleged to have occurred in late October 2017, when the complainants were very young.


In respect of count 1, the complainant B[....] (aged eight at the time) reported that on 24 October 2017 the appellant lured him to the field where livestock were grazing, on the pretext that assistance was needed. There, the appellant raped him by anal penetration and threatened to kill him if he disclosed the incident.


In respect of count 2, the complainant T[....]/T[....] (aged four at the time) reported that on 27 October 2017 the appellant did the same to him. The incident in count 2 was reported that afternoon to Ms K[....]. After this disclosure, B[....] revealed that he had also been raped three days earlier. Ms K[....] then reported the matter to the police, leading to the appellant’s arrest.


Both complainants were taken for medical examination, and the J88 medical reports were admitted as exhibits. The nurse found no physical injuries in either complainant, but recorded the view that the absence of injuries did not exclude violent behaviour.


The judgment records that there were contradictions and discrepancies in parts of the complainants’ accounts, particularly concerning the sequence of events after the rapes and aspects of reporting. The trial court (and the appeal court in its evaluation) treated these as discrepancies that did not undermine the complainants’ identification of the appellant or the core allegation of sexual violation.


3. Legal Issues


The central questions on appeal concerning the convictions were whether the trial court misdirected itself in finding that the State proved guilt beyond reasonable doubt, particularly where the complainants were single witnesses and very young children, and where contradictions existed in their evidence. The appeal required evaluation of whether those contradictions were material and whether the complainants’ evidence met the requirements of the cautionary approach applicable to such testimony.


The sentencing issues concerned whether the trial court committed a misdirection in imposing life imprisonment and whether the sentences were disturbingly inappropriate or otherwise unjust or disproportionate. The appeal further required consideration of whether the trial court properly evaluated the appellant’s personal circumstances, the alleged impact of time spent in custody awaiting trial, and whether substantial and compelling circumstances existed to justify deviation from the prescribed sentence.


The dispute therefore involved a combination of fact (credibility and reliability findings; materiality of contradictions), the application of law to fact (the cautionary approach and proof beyond reasonable doubt), and a discretionary/value judgment (sentencing discretion and proportionality).


4. Court’s Reasoning


On conviction, the appeal court emphasised the established principle that the evaluation of evidence and credibility findings primarily fall within the domain of the trial court, which has the advantage of seeing and hearing witnesses and being “steeped in the atmosphere of the trial”. It held that an appeal court may interfere only where there is a clear and demonstrable misdirection, and not merely because it might have reached a different conclusion.


Applying these principles, the appeal court noted that the trial court had undertaken a comprehensive analysis of the evidence and was fully aware of the discrepancies. It accepted that contradictions existed in certain respects, but considered that the trial court correctly approached the evidence with the required caution, especially given that the complainants were four and eight years old at the time of the events, testified three years later, and did so over multiple sittings due to fatigue and limited attention spans.


The appeal court held that the discrepancies identified related chiefly to the sequence of events after the rapes and issues around to whom and when disclosures were made, rather than to the identity of the perpetrator or the essential description of what had occurred. It referred to objective indicators such as the timing reflected in the medical examination (as recorded on the J88s) and the evidence of Ms K[....] regarding how she became involved. In particular, it accepted that T[....] was suggestible and unable to remember certain aspects of sequencing during cross-examination, but the court did not regard this as sinister given his age and the trauma of the incidents.


The appeal court further accepted the trial court’s conclusion that, despite discrepancies, the complainants were steadfast on the crucial aspects: the appellant’s identity and the sexual violations described. The appeal court therefore found no basis to disturb the trial court’s findings that the complainants were honest witnesses and that their evidence was reliable and trustworthy on material aspects.


The appellant’s additional complaint that the trial court allegedly failed to account for all evidence was rejected because it was not supported by specification. The appeal court reiterated that while a court must account for the evidence, it need not address every minute detail, particularly where immaterial.


On sentence, the appeal court applied the standard principles governing appellate interference with sentencing. It stressed that sentence is pre-eminently within the trial court’s discretion, and that an appeal court may interfere only if the sentence is vitiated by irregularity or misdirection, or is disturbingly inappropriate. It also endorsed the approach that an appeal court cannot substitute its preferred sentence absent a material misdirection.


The appeal court noted the personal circumstances placed on record: the appellant was 42 years old, a citizen of Lesotho, married with a child residing in Lesotho, had no schooling, worked as a shepherd earning R1000 per month, and was treated as a first offender. It also recorded submissions that the appellant had kidney problems allegedly caused by an assault by police, that he had been raped in custody after arrest, and that he had spent time in custody awaiting trial.


The appeal court held that the trial court had considered these submissions but correctly attached limited weight to the alleged health challenges and rape in custody because they were unsupported by medical or documentary proof. Regarding time spent in custody, the appeal court accepted the trial court’s reasoning that the appellant’s incarceration was connected to his failure to appear, re-arrest, and a contempt of court finding, and it endorsed the view that time in custody is not per se a basis to deviate from the prescribed sentence but is a factor to be weighed with others.


Ultimately, the appeal court concluded that the trial court’s sentencing analysis could not be faulted, that no misdirection was established, and that life imprisonment on each rape count was not shocking or inappropriate given the seriousness of the offences. The appeal court also recorded the ancillary statutory orders made by the trial court, and it confirmed them.


5. Outcome and Relief


The appeal against both convictions and sentences was dismissed. The convictions and the sentences of life imprisonment on each count were confirmed, as were the trial court’s ancillary orders regarding firearm possession, inclusion on the National Register of Sex Offenders, and suitability to work with children.


No separate costs order is recorded in the judgment.


Cases Cited


R v Dhlumayo and Another 1948 (2) SA 677 (A).


S v Pistorius 2014 (2) SACR 315 (SCA).


S v Kebana [2010] 1 All SA 310 (SCA).


S v Rabie 1975 (4) SA 855 (A).


S v Malgas 2001 (1) SACR 469 (SCA).


Director of Public Prosecutions, Gauteng v Tsotetsi 2017 (2) SACR 233 (SCA).


S v Mashava 2014 (1) SACR 541 (SCA).


Legislation Cited


Criminal Procedure Act 51 of 1977 (section 280).


Firearms Control Act 60 of 2000 (section 103(1)).


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 50).


Children’s Act 38 of 2005 (section 120(4)).


Correctional Services Act 111 of 1998 (section 39(2)(a)(ii)).


Rules of Court Cited


No specific rules of court are cited in the judgment.


Held


The High Court held that the trial court’s credibility and reliability findings were not vitiated by misdirection, and that the contradictions identified in the complainants’ evidence were not material to the core issues of identification and sexual violation. The State’s case was therefore treated as having been proven beyond reasonable doubt, and the convictions on both rape counts were confirmed.


On sentence, the High Court held that the trial court exercised its sentencing discretion judicially, took account of relevant personal circumstances, and was entitled to impose life imprisonment given the seriousness of the offences. The appellant failed to establish substantial grounds for interference, and the sentences and ancillary statutory orders were confirmed.


LEGAL PRINCIPLES


An appeal court is required to show deference to the trial court’s credibility and factual findings because the trial court has the advantage of observing witnesses and the conduct of the trial. Interference is justified only where there is a clear misdirection or where the trial court is shown to be clearly wrong on a conspectus of the evidence.


Where evidence comes from single witnesses, and especially young child complainants, a court must adopt an appropriately cautious approach. However, contradictions are not automatically fatal; the material question is whether discrepancies are material to the elements of the offence and whether, despite them, the evidence on critical aspects remains reliable and trustworthy.


In sentencing, punishment is pre-eminently a matter for the discretion of the trial court. An appellate court may interfere only where the discretion was not properly exercised, including where there was a material misdirection, irregularity, or where the sentence is disturbingly inappropriate, disproportionate, or unjust.


Alleged mitigating factors such as medical conditions or mistreatment in custody may justifiably carry limited weight where they are unsupported by documentary evidence. Time spent in custody awaiting trial is a relevant consideration but is not treated as an automatic or stand-alone ground for deviation; it must be assessed together with the full set of sentencing factors recorded in the case.

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[2022] ZAFSHC 94
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Nkoto v S (A44/2021) [2022] ZAFSHC 94 (12 May 2022)

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
APPEAL
NUMBER: A44/2021
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
LEPITA
LAZARO NKOTO

APPELLANT
and
THE
STATE

RESPONDENT
HEARD
ON:
14 FEBRUARY 2022
CORAM
:
NAIDOO, J et DANISO, J
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
12 MAY
2022
[1]
The appellant was convicted on 9 December 2020, in the Bloemfontein
Regional
Court, on two counts of rape in respect of two minor
children. He was sentenced on 25 January 2021 to life imprisonment.
The appellant
approaches this court in terms of
his automatic right of appeal, and the appeal lies against
both his conviction and sentence. Adv (Ms) L Smit appeared for the
appellant
and Adv (Mr) A Busakwe for the respondent.
[2]
The Appellant’s grounds of appeal against the convictions and
sentences
in respect of counts 1 and 2 are, in essence, that in
respect of the convictions, the court
a quo
erred in finding
that:
2.1
the state had proved its case beyond reasonable doubt,
2.2
the complainants’ versions satisfied the requirements of
the cautionary
rule;
2.3
the contradictions in evidence of the state witnesses, particularly
the complainants
were not material;
2.4
the versions of the appellant and *his witness were not reasonably
possibly
true;
[*
the appellant did
not call a witness, and it is assumed that this is therefore an
error
]
In respect of sentence,
the court erred by:
2.5
imposing sentences that are shockingly inappropriate;
2.6
over-emphasising the interests of the community and the seriousness
of the offences
over the personal circumstances of the appellant;
2.7
imposing sentence in a spirit of anger;
2.8
not taking into account the time spent in custody by the appellant,
awaiting
trial; and
2.9
not finding that substantial and compelling circumstances existed to
justify
a deviation from imposing the prescribed minimum sentence.
[3]
The background to this matter, briefly, is that the appellant worked
as a herdsman
for a neighbour of the complainants. He was known to
the complainants as well as the first state witness, M[....] S[....]
K[....],
the so-called first report. The complainants reported that
on 24 October 2017, he lured the complainant in count 1 (B[....]) to

the field where the cows/goats were grazing on the pretext that he
needed help to graze the cows/goats. There he raped B[....]
by
penetrating him anally. B[....] was eight years old at the time. He
threatened to kill him if he told anyone what had happened.
On 27
October 2017 he did the same to the complainant in count 2
(T[....]/T[....]). T[....] was four years old at the time. He
however
reported the incident that afternoon to Ms M[....] K[....], who is
his neighbour. B[....] is the child of M[....] K[....]’s
older
sister. Thereafter B[....] revealed that the same was done to him
three days earlier. Ms K[....] then reported the matter
to the
police, which led to the arrest of the appellant. The complainants
were also taken to the hospital where they were examined
by a nurse.
The medical reports (J88) completed by the nurse in respect of each
complainant were handed in as exhibits in the trial
court. The nurse
found no physical injuries on both complainants, but concluded that
the absence of injuries did not exclude “violent
behaviour”.
[4]
The task of analysing and evaluating evidence is vested in the trial
court. An appeal
court is limited in its ability to interfere with
the trial court’s conclusions, and may not do so simply because
it 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 than a court of appeal to assess the evidence, and
such assessment must prevail, unless there is a clear and
demonstrable misdirection. This is a principle that is well
established in our law.
[5]
In
R v Dhlumayo and
Another
1948 (2) SA 677
(A) at 705
the
majority, per Greenberg JA and Davis AJA (Schreiner dissenting) said:
“The trial court has the advantages, which the
appeal judges do
not have, in seeing and hearing the witness and being steeped in the
atmosphere of the trial. Not only has the
trial court the opportunity
of observing their demeanour, but also their appearances and whole
personality. This should not be
overlooked.” A similar view was
adopted in
S v Pistorius
2014 (2)
SACR 315
(SCA) par 30,
which cited,
inter alia
Dhlumayo
with approval
:
“
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. It can hardly be disputed that the
magistrate had advantages which we, as an appeal court, do not have
of having
seen, observed and heard the witnesses testify in his
presence in court. 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.”
[6]
In the present matter, the trial court undertook a comprehensive
analysis of the evidence
for the state and the appellant. It is so
that there were differences and contradictions in certain aspects of
the versions proffered
by the state witnesses. The court was acutely
aware of these and dealt with such discrepancies. The Court correctly
reminded itself
of the extreme caution required when dealing with the
evidence not only of single witnesses, but particularly where a
single witness
was a very young child. In this case the complainants
were four and eight years old respectively, when the incidents
occurred.
They testified three years later, and not all in one day.
Due to their short attention spans and the fact that they tired
easily,
their evidence was taken on different occasions until they
had completed testifying.
[7]
The trial court was alive to this and to the tender ages of the
complainants. I should
perhaps remark that it is common sense that
children of four and eight years do not have the mental and
intellectual maturity to
fabricate incidents of sexual violence to
the extent that the two young complainants in this matter were able
to describe. It seems
that T[....] did not even have the vocabulary
to describe what happened to him, and expressed it as “funny
things”
that were done to him. The fact they testified three
years after the incident is a factor that would also have played a
part in
the contradictions in their evidence. The court concluded
that in spite of the differences and even contradictions in their
evidence,
both complainants were steadfast in their versions as to
the identity of the appellant and the details of how he had sexually
violated
them.
[8]
The contradictions or discrepancies in their versions concerned the
sequence of events
after they were violated by the appellant, and did
not affect their identification of him, nor what was done to them by
the appellant.
It was, for example, not clear whether the first
person to whom B[....] reported the rape was Whane or M[....]
K[....]. He was
also somewhat confused about the day he actually
reported the rape, that is whether it was the 25
th
or 27
th
October 2017. The objective evidence in this regard is the version of
M[....] K[....] that the rape in respect of B[....] came
to her
knowledge on 27 October 2017, and the J88, reflecting that he was
examined on 28 October 2017. Similarly, with T[....],
he testified
that he told M[....] K[....] about the rape and she said he should
report it to his mother, which he said he did.
Thereafter he and his
parents visited the shack where he alleged that the rape took place.
He recanted this evidence later. M[....]
K[....] testified that
T[....]’s mother was not present, and was suspected to be out
drinking. Hence she took charge of the
situation. The J88 in respect
of T[....] indicates that she accompanied him to the hospital and
informed the nurse of the history
of the matter. T[....]’s
evidence during cross-examination indicated that he was very
suggestible and also could not remember
details of the sequence of
events after he was raped. Nothing sinister can be ascribed to these
lapses on T[....]’s part,
if regard is had to the fact that he
was only four years old at the time and that he had just been
subjected to traumatic abuse.
The trial court in my view, correctly
assessed the cogency and impact of the discrepancies in the evidence,
especially of T[....]
and B[....], and concluded that they were not
material. For these reasons, the court found that they were honest
witnesses, whose
evidence in respect of the rapes was reliable and
trustworthy. I cannot fault the reasoning or these findings of the
trial court.
[9]
In view of what I have said, the appellant’s grounds of appeal,
which I have
listed above, cannot be sustained. In addition, the
appellant alleged that the trial court did not account for all the
evidence,
without specifying which evidence was not dealt with by the
trial court. It is indeed so that the court must account for all the

evidence, but it is trite that that it is not necessary for a court
to deal with every minute detail of the evidence led at the
trial,
particularly if those details are immaterial to or have no bearing on
its conclusions. In the absence of specificity in
the appellant’s
allegation in this regard, this court is unable to deal with that
allegation.
[10]
With regard to sentence, it is well established that
sentencing
is a matter which is within the discretion of the trial court. It is
trite that an appeal court will only interfere with
a sentence if the
trial court misdirected itself in imposing sentence or its discretion
is vitiated by irregularity, or if the
sentence is unreasonable,
unjust or disproportionate to the offence. This trite principle has
been well settled in our law, and
was succinctly enunciated
approximately 47 years ago in the case of
S v Rabie 1975(4) 855
(A) at 857
, where Holmes JA said:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal -
(a)
should be guided by the principle
that punishment is "pre-eminently a matter for the discretion of
the trial Court";
and
(b)
should
be careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been "judicially and properly exercised".
2.
The test under
(b)
is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate”.
This
principle was subsequently re-iterated in the much-quoted case of
S
v Malgas 2001(1) SACR, 469 (SCA)
at, 478 para12
, where the
court remarked that:
“…
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh…”.
[11]
In this matter, the personal circumstances of the appellant placed on
record are that he is a
42 year old citizen of Lesotho who is married
with a [....] year old son. His wife and son reside in Lesotho. He is
a first offender,
the state having proved no previous convictions
against him. The appellant never attended school and worked as a
shepherd, earning
R1000 per month. His parents are deceased. His
legal representative submitted that although he was not in possession
of any medical
records, the appellant has a problem with his kidneys
as a result of a previous assault upon him by members of the South
African
Police Service. This has caused health problems for him. In
addition, he was raped in custody after his arrest in this matter.
[12]
The trial court undertook a comprehensive analysis of the case law
relevant to sentencing, and
applied the established principles of
sentencing to its consideration of the appellant’s personal
circumstances. The court
took into account the defence’s
submissions regarding the appellant’s alleged health
challenges, his alleged rape in
custody and the time spent in
custody, awaiting trial. The court correctly found that in the
absence of medical or other documentary
evidence regarding the
appellant’s health issues and the rape in custody, not much
weight could be attached to the submissions
in respect thereof. With
regard to the time spent in custody, the court correctly pointed out
that the accused failed to appear
in court, was re-arrested and was
found guilty of contempt of court. This resulted in his
incarceration. The court further referred
to case law indicating that
the time spent in custody is not
per se
a ground for deviating
from the imposition of the prescribed minimum sentence, but is a
factor to be considered with all other
relevant factors.
[13]
The trial court’s comprehensive analysis of the various factors
relevant to sentencing
in this matter cannot be faulted, and I am
unable to find any misdirection in the imposition of the sentences in
this matter, nor
that sentences were imposed in anger, as alleged by
the appellant, without substantiation. The seriousness of the
offences in this
matter is deserving of harsh sanction, and I am of
the view that the sentences of life imprisonment on each count are
neither shocking
nor inappropriate. The court also made orders in
terms of the relevant provisions of various statutes as follows,
which are:
13.1
Section 280
of the
Criminal Procedure Act 51 of 1977
, ordering the
two life sentences to run concurrently;
13.2
Section 103(1)
of the
Firearms Control Act 60 of 2000
, in terms of
which the appellant is deemed to be unfit to possess a firearm;
13.3
Section 50 of the Criminal Law Amendment Act, Sexual Offences and
Related Matters Act 32 of 2007, directing
that the appellant’s
name be added to the National Register of Sex Offenders; and
13.4
Section 120(4) of the Children’s Act 38 of 2005, in terms of
which the appellant was found not to be
a suitable person to work
with children.
[14]
I point out that there does not need to be a specific order that two
sentences of life imprisonment
should run concurrently, as they do so
by operation of law. [See
section 39
(2)
(a)
(ii)
of the
Correctional Services
Act
111 of 1998
].
In
Director
of Public Prosecutions, Gauteng v Tsotetsi
2017
(2) SACR 233 (SCA)
at para [34],
the Supreme Court of Appeal made the specific order that two life
sentences imposed by it had to run concurrently. [See also
S
v Mashava
2014
(1) SACR 541
(SCA)
]
[15]
In the circumstances, the following order is made:
15.1
The appeal against the convictions and sentences is dismissed.
15.2
The convictions and sentences imposed on the appellant are confirmed.
15.3
The orders of the trial court, referred to in 13.2 to 13.4 are
confirmed.
NAIDOO,
J
I
concur.
DANISO,
J
On
behalf of appellant:       Adv L Smit
Instructed
by:

Legal Aid South Africa
Bloemfontein
Local Office
On
behalf of respondent:   Adv. A Busakwe
Instructed
by:

The Office of the DPP
BLOEMFONTEIN

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