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Notsi v S (A112/2021) [2022] ZAFSHC 120 (13 May 2022)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of raping his twelve-year-old stepdaughter — Appellant contended that trial court erred in evaluating evidence and finding state witnesses credible — Court found that discrepancies in witness testimonies were immaterial and did not undermine the complainant's reliability — Trial court's thorough analysis of evidence supported conviction beyond reasonable doubt — Sentence of life imprisonment upheld as appropriate given the severity of the crime.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned a criminal appeal against conviction and sentence in the High Court of South Africa, Free State Division, Bloemfontein. The appellant, Jacob Notsi, appealed against his conviction in the Regional Court, Welkom, for the rape of his twelve-year-old stepdaughter, and against the sentence of life imprisonment imposed for that offence.


The respondent was the State. The appeal came before Naidoo J and Daniso J, with judgment delivered by Daniso J on 13 May 2022 (after the hearing on 14 February 2022).


The procedural posture was significant: the appeal proceeded as an automatic appeal in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977, given the sentence imposed. The general subject-matter of the dispute was whether the trial court correctly found that the State had proved identity of the perpetrator beyond reasonable doubt, and whether the sentence of life imprisonment under the minimum-sentence regime was correctly imposed without substantial and compelling circumstances justifying a lesser sentence.


2. Material Facts


It was common cause on appeal that the complainant had been raped on 19 January 2021. The decisive factual issue at trial, and on appeal, was who committed the rape.


The court accepted the following sequence of events as materially established. On the evening in question at about 19h00, the complainant went to the appellant’s residence to visit her mother (the appellant’s wife). The complainant’s mother was not at home, and the appellant suggested that the complainant wait. The appellant prepared food for her. When it became late, the complainant decided to sleep over because she was afraid to walk back to her grandmother’s home at night.


According to the complainant’s account accepted by the courts, at approximately 20h00 she was asleep on the appellant’s bed when she awoke to the appellant touching her. The appellant then got on top of her, removed her tights, inserted his penis into her vagina, and had sexual intercourse with her. The next morning the appellant gave her a cellphone and a spare key to his shack, instructed her to contact him, and told her not to inform her grandmother when she visited him, including leaving her grandmother’s house through a window.


The complainant’s report of the incident was materially corroborated in two ways relied upon by the court. First, her adopted sister (M[…]3 T[…]) testified that the complainant returned home walking with difficulty and in pain, and reported that she had spent the night at the appellant’s residence where he had sexual intercourse with her, and that he had given her a cellphone and a key. Second, the complainant’s cousin (M[…]4) testified that after questioning the complainant about where she had been, she took the complainant to the police station, where the complainant reported in her presence that the appellant had had sexual intercourse with her and showed the police the cellphone and key.


Medical evidence was admitted by consent. The J88 medical report recorded semen and discharge in the vaginal area and stated that vaginal penetration could not be ruled out.


The appellant’s version was that he did not rape the complainant and that the accusation was false, alleging that the rape was committed by M[…]3’s boyfriend. He further denied that he had given the complainant a cellphone and key, and asserted that on the day of the incident he did not see the complainant because he was away at work until late. The appellant’s wife testified in support of the defence and sought to portray the complainant as untruthful and undisciplined.


The appeal record reflected that certain differences existed between State witnesses on peripheral aspects, including how the complainant initially responded when questioned about her whereabouts, who precisely relayed the report at the police station, and where the complainant had been sleeping immediately before the rape (on a bed versus on the floor). The court treated these as part of the evaluative landscape, but not determinative of the identity finding.


3. Legal Issues


The principal legal issue was whether the trial court correctly found, on the evidence, that the State proved the appellant’s identity as the perpetrator beyond reasonable doubt, notwithstanding that the complainant was both a child witness and effectively the single witness to the act of rape.


This dispute primarily concerned the application of legal standards to factual findings, including credibility assessment, the treatment of contradictions, corroboration, and the proper approach to an accused’s version in the face of the State’s case. It also engaged the appellate standard governing interference with factual findings and credibility determinations by a trial court.


On sentence, the central issue was whether the trial court correctly imposed the prescribed minimum sentence of life imprisonment for rape in the circumstances, and whether the appellant’s personal circumstances and other factors constituted substantial and compelling circumstances justifying deviation.


4. Court’s Reasoning


The High Court approached the appeal mindful of the established appellate restraint in relation to factual findings. It relied on authority emphasising that an appeal court will not readily interfere with the trial court’s factual and credibility findings unless there is a material misdirection or the findings are clearly erroneous, because the trial court had the advantage of observing witnesses and being immersed in the trial atmosphere.


On conviction, the court noted that the trial court had been alive to the cautionary rules applicable where the complainant is both a child and a single witness implicating an accused. The High Court endorsed the trial court’s evaluation that the complainant could recall and narrate the events despite her young age, and that her account of the rape remained succinct and intact under cross-examination.


The court further held that the trial court had not relied on the complainant’s evidence in isolation. It considered the complainant’s version materially supported by the medical evidence (J88) and by the evidence concerning the cellphone and key associated with the appellant and linked to the complainant after the incident. The High Court accepted that this constellation of facts strengthened the reliability of the complainant’s identification of the appellant as the perpetrator.


Regarding the alleged contradictions and discrepancies highlighted by the appellant, the High Court agreed with the trial court that they were immaterial to the core enquiry of guilt. It treated the differences as the sort of minor inconsistencies that can arise from honest but imperfect recollection, rather than indications of fabrication. The court also reasoned that such inconsistencies tended to undermine the appellant’s suggestion of a conspiracy between the complainant and the State witnesses.


The defence evidence was also evaluated critically. The High Court upheld the trial court’s rejection of the appellant’s wife as a credible exculpatory witness, noting that she was not present at the time of the incident and that the trial court regarded her testimony as an attempt to protect the appellant. In addition, the High Court attached significance to a forensic deficiency in the defence case: the appellant’s claim that he was at work and not at home was not put to the State witnesses during cross-examination, depriving them of an opportunity to respond and supporting the trial court’s conclusion that the appellant’s version was fabricated. The High Court considered that the trial court’s rejection of the appellant’s version as false was justified on the totality of evidence.


On sentence, the High Court addressed and rejected the contention that the trial court had failed to consider time spent in custody awaiting trial. It relied on the record indicating that the appellant had been released on warning after arrest, making it incorrect to assert pre-trial incarceration as a mitigating factor.


The High Court then considered the appellant’s personal circumstances, including his age (47), marital status, dependants, self-employment, breadwinner status, and a previous related conviction approximately ten years earlier. It endorsed the trial court’s conclusion that these circumstances were not exceptional and did not amount to substantial and compelling circumstances warranting deviation from life imprisonment, particularly when weighed against the seriousness of the offence, the complainant’s trauma, and the appellant’s demonstrated propensity, given the prior similar conviction and the lack of deterrent effect from the earlier sentence.


In its evaluation of punishment, the High Court accepted the approach that for serious and prevalent crimes of this kind, especially involving children in domestic or trust relationships, the considerations of deterrence and retribution assume particular prominence. It concluded that the trial court had exercised its discretion properly and judicially, and that life imprisonment appropriately reflected the gravity of the offence and societal condemnation.


5. Outcome and Relief


The High Court dismissed the appeal against both conviction and sentence. The appellant’s conviction for rape and the sentence of life imprisonment were confirmed. The judgment did not make a separate costs order.


Cases Cited


R v Dhlumayo & Another 1948 (2) SA 677 (A)


AM & Another v MEC Health, Western Cape 2021 (3) SA 337 (SCA)


S v Oosthuizen 1982 (3) SA 571 (T)


Small v Smith 1954 (3) SA 434 (SWA)


S v Van As 1991 (2) SACR 74 (W)


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


S v D 1995 (1) SACR 259 (A)


S v Abrahams 2002 (1) SACR 116 (SCA)


S v Mhlakaza and Another 1997 (1) SACR 515 (SCA)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 309(1)(a)


Criminal Law Amendment Act 105 of 1997, section 51(1)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the trial court committed no misdirection in its factual findings or in its acceptance of the complainant’s evidence, notwithstanding her status as a child and single witness, because her account was found reliable and was materially supported by corroborative evidence, including medical findings and evidence concerning the cellphone and key.


The court further held that the inconsistencies identified by the appellant were not material to the determination of guilt and were consistent with honest imperfections of recall rather than fabrication. The appellant’s version was correctly rejected as false, including because aspects of his purported alibi were not put to State witnesses.


On sentence, the court held that there were no substantial and compelling circumstances justifying deviation from the prescribed minimum sentence of life imprisonment, and that the trial court properly emphasised deterrence and retribution given the gravity of child rape in a domestic context and the appellant’s previous related conviction.


LEGAL PRINCIPLES


The judgment applied the principle that an appellate court will be slow to interfere with a trial court’s credibility findings and factual conclusions, particularly where the trial court observed the witnesses, and will do so only where there is a clear misdirection or the findings are clearly wrong.


It applied the approach that, while a court must exercise caution with the evidence of a child witness and a single witness, such evidence may be accepted where it is found to be clear, reliable, and satisfactory in material respects, especially where there is corroboration relevant to the commission of the offence and the surrounding circumstances.


It endorsed the principle that not all contradictions are material: minor inconsistencies may be indicative of imperfect but honest recollection and do not necessarily undermine credibility, particularly where the central narrative remains stable and is supported by other evidence.


On sentencing under the minimum-sentence framework, the judgment applied the principle that traditional personal mitigating circumstances, whether singly or cumulatively, do not automatically constitute substantial and compelling circumstances; they must be weighed against aggravating features and should not be elevated to justify deviation absent truly weighty justification. The judgment further reflected the sentencing principle that for serious, prevalent crimes such as rape of children (particularly in relationships of trust or domestic proximity), deterrence and retribution may justifiably be emphasised, and repeat offending is a significant aggravating factor.

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[2022] ZAFSHC 120
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Notsi v S (A112/2021) [2022] ZAFSHC 120 (13 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: A112/2021
Reportable:
YES/NO
Of
Interest to other Judges:  YES/NO
Circulate
to Magistrates:  YES/NO
In
the Appeal between:
JACOB
NOTSI
Appellant
And
THE
STATE
Respondent
CORAM:
NAIDOO, J
et
DANISO, J
HEARD
ON:
14
FEBRUARY 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
13 MAY 2022
[1]
This is an appeal against the
conviction and sentence of life imprisonment imposed on the
appellant
by the Regional Court sitting in Welkom for the rape of his twelve
(12) year old step daughter on 19
th
January 2021 at the
appellant’s residence.
[2]
The appeal is
by virtue of the appellant’s right to automatic appeal as
provided for in s
ection 309 (1)(a) of the Criminal
Procedure Act, 51 of 1977 (“the Act”).
[3]
The
appellant challenges his conviction and
sentence
on the grounds that in convicting the appellant, the
court erred in:
3.1.
not properly analysing or evaluating the evidence of the state
witnesses, and therefore finding that the state witnesses gave their
evidence in a satisfactory manner, with no improbabilities
in their
version;
3.2.
finding that the evidence of the state witnesses can only be
criticised
in matters of detail, whereas their evidence was
contradictory in material respects; and
3.3.
failing to properly consider the improbabilities in the state’s

version, resulting in the court not considering the totality of
evidence when rejecting the appellant’s version and finding

that the state proved its case beyond reasonable doubt.
4.
As regards the sentence, the appellant contends that the court erred
in:
4.1.
imposing a term of life imprisonment without having regard to all
the
circumstances of the case which is inappropriate, disproportionate to
the facts of the case, excessive and induces a sense
of shock; and
4.2.
over-emphasizing the seriousness of the offence, the interests of

society, the deterrent effect of the sentence and the retributive
element of sentencing.
[5]
From the record of the proceedings it is clear that it is not in
dispute that the
complainant was raped on 19 January 2021. The issue
which had to be determined by the trial court was the identity of the
perpetrator.
[6]
On that evening, at about 7pm the complainant went to the appellant’s
residence
to visit her mother Ms  M [....]1 M[....]2who is the
appellant’s wife and the mother of his two children. Her mother

was not home as a result the appellant suggested that she wait for
her to return. The appellant prepared a meal for the complainant
and
when it became late the complainant decided to rather sleep over as
she was afraid to walk back to her grandmother’s
place at
night. At about 8pm the complainant was fast asleep on the
appellant’s bed when she was woken up by the appellant
touching
her. At first she thought it was her mother but then the appellant
got on top of her. He undressed her by removing her
tights, inserted
his penis into her vagina and had sexual intercourse with her. In the
morning, he gave her a cell phone and said
she must use it to call
him and a spare key for his shack. He told her that she must use the
key to enter whenever she comes to
visit him. She must not tell her
grandmother when she is coming and must leave her grandmother’s
house through a window.
[7]
The complainant’s adopted sister  M [....]3 T [....](“
M [....]3”)
corroborated the complainant’s first report
of the rape incident and stated that the complainant arrived home
walking with
difficulty and in pain. She told  M [....]3 T
[....]that she spent the previous night with the appellant who had
sexual intercourse
with her and also gave her a cell phone and a key
to his residence.
[8]
M [....]4 M[....]5 (“M[….]4”) is the complainant’s
cousin.
At the time of the incident she was also residing at their
grandmother’s house. She questioned the complainant about her
whereabouts the previous night. The complainant who was at first
reluctant to provide an explanation ultimately divulged that she
had
slept at her mother’s place. Knowing that the complainant’s
mother was no longer staying with the appellant M [....]4
became very
concerned that the complainant had spent a night away from home at
that young age. She then decided to take the complainant
to the
police station so that the truth about her previous night’s
whereabouts can be determined. At the police station the
complainant
told the police in her presence that she spent the night with the
appellant and that he had sexual intercourse with
her. She also
showed the police a cellular phone and the key that the appellant had
given her.
[1]
The state’s
version is that after the cellular phone and the key were handed to
the police the appellant continued to gift
the complainant with more
cellular phones while she innocently boasted to M [....]3,  M
[....]4and even her school teachers
that she was the appellant’s
wife. The complainant was thereafter taken to hospital for medical
examination.
[9]
The gynaecological clinical findings recorded on the medical report
(J88) handed in
by consent as Exhibit “A” indicate that
there was semen and some discharge resembling menstruation present in
the vaginal
area and vaginal penetration could not be ruled out.
[10]
The appellant’s version was that
he
was falsely accused by the complainant for the rape which was
committed by M [....]3’s boyfriend. He denied that he raped the

complainant and that he gave her the cell phone and a key to his
residence because on the day of the incident he did not even see
the
complainant. He was away at work till late. His version was that the
complainant had continued to visit his residence even
after the rape
charge was laid.
[11]
The appellant’s wife testified that the appellant could not
have raped the complainant
and in corroborating the appellant’s
version of the false accusation by the State witnesses, she alleged
that the complainant
was a liar and an uncontrollable child who spent
her nights out at the taverns drinking with M [....]3. Therefore, she
should not
be believed.
[12]
In support of his challenge to the conviction and sentence, the
appellant alleged that the complainant
was a child and also a single
witness to the crime
and her evidence
was not satisfactory in all material respects.
[13]
The appellant raised a number of discrepancies and contradictions in
the evidence of the complainant
and the State, namely that:
13.1.
The complainant was not forthcoming when she was questioned by
M
[....]4about where she slept the previous night. She told  M
[....]4that she spent the night at the appellant’s place
while
M [....]4said the complainant told her she was at her mother’s
place;
13.2.
Her evidence also contradicted the other witnesses in that she

testified that she made the first report to the police while  M
[....]3 T [....]said it was made to her;
13.3.
She said at the police station it was  M [....]3 T [....]who

relayed the rape incident to the police but  M [....]4said it
was the complainant; and
13.4.
There were also discrepancies with regard to where exactly the

complainant was sleeping immediately before the rape. Her testimony
was that she was sleeping on the bed  M [....]4said the

complainant was sleeping on the floor. It is on that basis that it
was contended on behalf of the appellant that these discrepancies
in
the evidence of the State witnesses are material and affected their
credibility, the trial court erred in accepting the evidence
as proof
of the appellant’s guilt beyond a reasonable doubt.
[14]
It
is trite that a court of appeal will not interfere with or tamper
with the 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
as
follows:
“
It
is trite that an appeal court is reluctant to disturb findings of
that character by a trial judge, who was steeped in the atmosphere
of
a lengthy trial and had the advantage of seeing and hearing the
witnesses. Such findings are only overturned if there is a clear

misdirection or the trial court’s findings are clearly
erroneous. That has consistently been the approach of this court
….”
[15]
The trial court undertook a thorough analysis of the evidence and
from the record, it is clear
that the trial court was alive to the
cautionary rules applicable to the complainant’s evidence as
both a child witness and
also a single witness implicating the
appellant in the rape. The trial court was impressed by the
complainant’s ability to
recollect and narrate what the
appellant did to her despite her young age and that as a single
witness to the crime. The court
found that her version regarding the
rape was succinct and remained intact even after cross-examination.
Her evidence was also
corroborated by the J88 (Exhibit “A”),
as well as the evidence relating to the confiscated cellular phone
and the key,
which the appellant had given to the complainant
(Exhibit “1” and “2”) after raping her.
Consequently, the trial court’s finding that the
complainant’s
veracity and ability
to give a succinct version of the events justified it in accepting
her version as a trustworthy and reliable
account of what had
happened.
[16]
With regard to the inconsistencies and differences in the State’s
evidence, which I have
set out above, I agree with the trial court’s
conclusion that they are immaterial for the determination of the
question of
the accused’s guilt. The contradictions are
insignificant and are to be expected from an honest but imperfect
recollection,
observation and reconstruction of the evidence.
[2]
They actually militate against the conspiracy between the complainant
and the state witnesses, which the appellant relied upon.
[17]
The trial court correctly rejected, as false, the evidence of the
appellant’s wife, pointing
out that she corroborated the
appellant’s version that he did not rape the complainant, yet
she was away from home at the
time of the incident.
She
was living somewhere else after she had quarrelled with the
appellant. The trial court found that her evidence was simply an

attempt to protect the appellant who is her husband and a provider
for her and their two children. I cannot fault the conclusion
of
trial court that this witness’s testimony was fabricated. It is
also important to note that the appellant’s version
that he
could not have raped the complainant on that day as he was not at
home but at work, was not put to any of the State witnesses
to give
them an opportunity to explain this contradiction. The appellant
could not have been in two places at the same time, justifying
the
trial court’s finding that the appellant’s version was
clearly fabricated
[3]
and its
rejecting it as false.
[18]
On the available evidence, I am satisfied that the trial court
correctly found that the State
proved the guilt of the appellant
beyond a reasonable doubt. The appellant was correctly convicted.
[19]
As regards the sentence, the trial court is criticized for
disregarding the time the appellant
spent in custody awaiting trial
and for failing to attach more weight to his personal circumstances
as substantial and compelling
factors justifying a deviation from the
prescribed minimum sentence of life imprisonment. According to the
record of the proceedings,
the appellant was released on warning upon
being arrested. It is therefore incorrect that he was incarcerated
pending trial.
[20]
The appellant’s personal circumstances placed on record are
that he is a 47 year-old married
man with two children, self-employed
and the bread winner for his family. He has one related previous
conviction, which was approximately
ten years old at the time of the
conviction and sentence in this matter. The trial court found the
appellant’s personal circumstances
cannot be regarded as
exceptional, to warrant a consideration as substantial and compelling
circumstances, and justifying a deviation
from the prescribed minimum
sentence. The trial court
found
further the appellant’s personal circumstances were also
outweighed by the gravity of the offence, the complainant’s

palpable trauma and the fact that the appellant was not a first
offender in relation to this offence.
[21]
It is trite that the traditional mitigating factors such as an
accused’s personal circumstances,
cumulatively can be taken
into account as factors to be considered as substantial and
compelling reasons however, they must be
weighed against the
aggravating factors. On their own, they constitute those flimsy
reasons which Malgas
[4]
warned
should not be elevated to the status of substantial and compelling
reasons warranting a deviation from the prescribed minimum
sentence.
[22]
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.
[5]
[23]
The gravity of sexual violations of children in the domestic sphere
was succinctly summed up
by Cameron JA in
S v Abrahams
2002
(1) SACR 116
(SCA) 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.”
[6]
[24]
In imposing sentence for serious, endemic and outrageous crimes such
as the present, the elements
of retribution and deterrence must come
to the fore.
[7]
It is
aggravating that the appellant has a propensity to commit these
heinous crimes. On 16 May 2011 he was convicted of a similar
offence
(rape as contemplated in
section 51
(1) of the
Criminal Law Amendment
Act 105 of 1997
). He was sentenced to five years’ imprisonment.
That period of imprisonment did not deter him nor rehabilitate him.
[25]
Having regard to the circumstances of this matter, I am of the view
that the trial court exercised
its discretion properly and
judicially. The sentence of life imprisonment is appropriate under
these circumstances, it reflects
the gravity of the crime and speaks
to the plight of the victims and the indignation of the society.
[26]
It is for these reasons, that the following order is made:
1.
The appeal against the conviction and sentence is dismissed.
2.
The conviction and sentence are confirmed.
N.S.
DANISO, J
I
concur
S.
NAIDOO, J
APPEARANCES:
On
behalf of appellant:
Adv. L Smit
Instructed
by:
Legal Aid SA
Attorneys for the
Appellant
BLOEMFONTEIN
On
behalf of the State:
Adv. A. Busakwe
Instructed
by:
Director of Public Prosecutions
Counsel for the
Respondent
BLOEMFONTEIN
[1]
The cell phone and the key were handed in as
Exhibit
“1” and “2”, respectively and Exhibit “B”
and “C” are the
copies
of the SAPS13 register in that regard.
[2]
See S v
Oosthuizen
1982
(3) SA 571
(T)
at page 576 para G-H.
[3]
Small
v Smith
1954
(3) SA 434
(SWA)
at 438E-G and
S
v Van As
1991
(2) SACR 74
(W)
at 108c-h.
[4]
S v Malgas
2001 (1) SACR 469
(SCA) paragraph 9.
[5]
At
page 260 f-g.
[6]
Page
123 at para 17.
[7]
S v
Mhlakaza and Another
1997
(1) SACR 515
(SCA) at 519d-e.

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