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[2022] ZAFSHC 138
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Moraile v S (A116/2021) [2022] ZAFSHC 138 (30 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
Case no:
A116/2021
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
JEREMIA
FUSI MORAILE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, ADJP
et
DANISO, J
HEARD
ON:
07 MARCH 2022
JUDGMENT
BY:
REINDERS, ADJP
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email
and release to SAFLII. The date and time for hand-down is
deemed to be 14:00 on 30 May 2022.
I
INTRODUCTION
[1]
The appellant was arraigned in the regional Court Bloemfontein on a
charge of rape
(in contravention of s3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act
[1]
read with the provisions of sec 51(1) of the Criminal Law Amendment
Act).
[2]
According to the
indictment, on 7 to 8 October 2009 he committed two acts of
penetrating the complainant vaginally, who was 15
years old at the
time. The evidence later revealed that the age of complainant at the
time was 14 years and 8 months, thus under
the age of 16.
[2]
The appellant, who enjoyed legal representation, pleaded not guilty
to the afore-mentioned
charge but in his plea explanation he admitted
to having had sexual intercourse once with the complainant. According
to him, however,
it was consensual. Moreover, he laboured under the
impression that the complainant was older than sixteen years. Having
heard the
evidence, the learned magistrate convicted and sentenced
him on 4 December 2013 in terms of s51(1)
[3]
to life imprisonment. He was also found to be unsuited to work with
children in terms of s120 of the Children’s Act.
[4]
An order was also issued that his name be entered into the Register
of Sexual Offenders. The magistrate ordered the appellant to
be unfit
to obtain a license for a firearm in terms of sec 103 of the Firearms
Control.
[5]
[3]
Aggrieved by his conviction and sentence, the appellant made use of
his automatic
right of appeal to this court in terms of s 309(1)(a)
of the Criminal Procedure Act (CPA).
[6]
II
GROUNDS OF APPEAL
[4]
The grounds of appeal
[7]
relied
upon by appellant can be summarised as follows:
4.1.
The trial court erred in finding that:
·
the State proved its case
beyond a reasonable doubt;
·
the evidence of the complainant
as single witness was clear and
satisfactory in all material respects
·
no substantial and compelling
circumstances to deviate from the
prescribed minimum sentence of imprisonment for life.
4.2.
The sentence of imprisonment for life is shockingly harsh and
inappropriate.
III
THE EVIDENCE
[5]
Five witnesses were called by the State. The version as accepted by
the trial court
as to what transpired on 7-8 October 2009 entailed
the following:
5.1
The complainant testified that on 7 October 2009 she was on her way
home from
school (dressed in her school uniform) between 15h00 and
16h00 when she decided to charge her cell phone at a nearby farm. She
was accosted by the appellant who grabbed her and took her to a
nearby veld close to a railway line. Here he undressed her panty
and
had non-consensual sexual intercourse with her without a condom. She
did not scream for help as she was threatened by the appellant.
He
threatened to stab her with a knife. Hereafter he took her to a
structure (storeroom), made a bed for her to sleep and left
her
there. Later in the evening he returned and had sexual intercourse
with her again without her consent and without a condom.
Once again
she could not scream as he repeated his threats to harm her. The
following morning the appellant told her to accompany
him to his
workplace as he wanted to collect money due to him. The appellant’s
employer gave them a lift to town together
with an unknown male
employee. This worker asked her whether she was the sister of the
appellant which the appellant confirmed.
She was still afraid after
having been raped. When the appellant moved to the front of the
vehicle, the complainant informed the
unknown male that the appellant
was not her brother and that she had been raped by him. Upon their
arrival in town the unknown
male accompanied her to the police
station to lay a charge against the appellant. Hereafter she was
taken for a medical examination.
At the time she was still dressed in
her school attire but barefooted, as she had lost her shoes during
the ordeal at the place
where appellant had dragged and raped her.
5.2
The evidence of the mother of the complainant, Mrs NJ M[....],
revealed that
the complainant had been in trouble before for having
slept out and returning home late.
5.3
The farmer Mr J Fourie testified that on 8 October 2009 he gave a few
people
a lift to town. This included the appellant, who was a
previous part-time worker, his other employee Johannes and the
complainant.
The appellant was seated in the front passenger seat of
his Bakkie. Upon their arrival at Central Park in town, Johannes
informed
him about a report that complainant had made to him that she
was raped by the appellant. Whilst standing at his Bakkie, he noticed
that appellant had fled. He showed Johannes and the complainant the
way to the police station. Johannes is no more in his employ
and he
does not know about his whereabouts.
5.4
Warrant officer W Leboa testified that all his efforts to locate
Johannes were
unsuccessful, whilst Constable E Mopheti confirmed a
witness statement by the appellant which was ruled inadmissible by
the court
a quo
. Sister Seekoei confirmed the J88 and her
conclusion that the complainant was already sexually active at the
time of the examination.
[6]
The upshot of the version tendered by the appellant was that he had
seen the complainant
before on several occasions but on 8 October
2009 he met her at a tuck shop near Tierpoort railway station. He did
not know her
age he also did not ask her about her age, but she was
dressed in her school uniform. He made a love proposal to her which
she
accepted. He never slept with her in the vicinity of the railway
station or an open field. On the day of the incident the complainant
voluntarily went with him to his home where they had consensual
intercourse. She later indicated to him that she did not want to
return to her home as it was late, she was afraid of her stepfather.
The following day in the morning they went to his employer
Mr Fourie
to request his wages in the amount of R700.00 (seven hundred rand).
Mr Fourie indicated to him that he would withdraw
the money from a
bank in town. Hereafter they (himself, the complainant and another
employee) caught a lift with Mr Fourie. Upon
arriving in town, he was
given change by Mr Fourie to go and buy a cigarette but when he
returned the complainant had left. He
never went back to Mr Fourie to
collect his R700.00. He was arrested about eight months later at his
home.
IV
THE JUDGMENT OF THE TRIAL COURT ON THE MERIT
[7]
From a reading of the record it is evident that the trial court in
its evaluation
of the adduced evidence was well appraised of the fact
that complainant was not only a single witness, but also a child
witness
as to what transpired on 8 and 9 October 2009 and critically
examined her evidence.
7.1
S208 of the CPA provides that an accused may be convicted of
any
offence on the single evidence of any competent witness. There is no
magic formula to apply when it comes to the consideration
of the
credibility of a single witness. The trial court should weigh the
evidence of a single witness and consider its merits and
having done
so, decide whether it is satisfied that the truth has been told,
despite the shortcomings or defects in the evidence.
In evaluating
the evidence the court should not allow the exercise of caution to
displace the exercise of common sense. The
Court
must ask itself whether having regard to the child’s power of
observation, her ability to remember and to also relate
concisely
what happened to her, the veracity of her evidence can be trusted
despite her young age.
See
S v Sauls
1981 (3) SA
172
(A) at 180E – G and
Woji v Santam
Insurance CO Ltd
1981 (1) SA 1020
(
A) at
1028B-C.
7.2
The trial court acknowledged that the complainant was a rebel
as
testified by her mother, stating that she might possibly have been
promiscuous. It found the evidence of the complainant to
be logical
and chronological. According to the magistrate the complainant made a
good impression on him as she never contradicted
herself. He
addressed to the fact that complainant did not in her statement
specifically make any mention of being threatened with
a knife in but
was satisfied that this aspect did not affect her credibility. The
trial court also found corroboration for the
complainant’s
evidence that the appellant had sexual intercourse with her in the
tall grass as indeed her shoes were found
at the scene when the
police later accompanied her to the scene.
[8]
The magistrate was satisfied in all the circumstances that the
complainant was a good and credible witness even after a time lapse
of three years since the crime had taken place.
7.3
The trial court likewise evaluated the evidence of the appellant
and
was less impressed. It was pointed out that the impression was formed
that appellant did not play open cards with the court.
[9]
He alluded to the discrepancies in the testimony by the appellant in
chief and during cross-examination. The magistrate examined
the
probabilities of the version tendered by appellant, making mention
thereof that Johannes could have shed more light on the
report to him
as testified by complainant. He however took a holistic look at all
the evidence and especially that of Mr Fourie
who testified that the
appellant fled the scene upon their arrival at Central Park, thereby
corroborating the version of the complainant
in this regard. The
appellant denied that he had fled and testified that he had merely
left to buy a cigarette at the time. The
trial court found the fact
that appellant did not return to fetch his money from Mr Fourie
improbable and indicative of a man who
could not afford to return to
his workplace as he was afraid of being arrested. The magistrate
deemed the fact that the appellant
admitted that the complainant was
dressed in school clothing significant in respect of appellant’s
concession that he did
not ask the complainant about her age. The
trial court remarked that in addition, apart from his own observation
in court that
complainant still looked like a child, even the
appellant’s legal representative had remarked that she would
have had injuries
if she was dragged by the appellant as testified,
as she was skinny (“skralerig gebou”).
[10]
[8]
The trial court concluded that the state had proven its case beyond a
reasonable doubt
and was satisfied that the complainant was raped
twice by appellant as testified by her. The magistrate accordingly
convicted the
appellant and indicated that the appellant committed
rape as envisaged in Part 1 Schedule 2 in that complainant was not
only under
the age of 16 (14 years 8 months at the time) she was also
raped more than once.
V
EVALUATION OF THE FINDING BY THE TRAIL COURT
[9]
It is trite that in the absence of an irregularity or misdirection by
the trial court,
a court of appeal is bound by the credibility
findings thereof, unless it is convinced that such findings are
clearly incorrect.
In order to succeed on appeal appellant must
convince us, on adequate grounds, that the trial court was wrong in
accepting the
evidence of the complainant. Bearing in mind the
advantage which the learned magistrate had of seeing, hearing and
appraising witnesses,
it is only in exceptional cases that an appeal
court will be entitled to interfere with a trial court’s
evaluation of oral
testimony.
[11]
[10]
I am satisfied that the trial court evaluated the evidence in its
totality and considered the
inherent probabilities as was dealt with
by Heher AJA (as he then was) in
S v Chabalala
2003
(1) SACR 134
(SCA) para [15] as follows:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[11]
It is apposite to consider the evaluation of inherent probabilities
by the trial court as accepted
by the Supreme Court of Appeal in
Magadla v S,
80/2011
[2011]
ZASCA 195
delivered
on 16 November 2011, (unreported), at para [22] and further.
[12]
Having considered the judgment of the trial court and taking into
account the guidelines by our
courts as set out herein above, I am
unable to find that the trial court erred in convicting the appellant
as it did.
[12]
VI
THE JUDGMENT OF THE TRIAL COURT ON SENTENCE
[13]
From the record it is evident that the trial court was well appraised
of the time honoured triad
in Zinn, the purposes of sentence and of
the principles to be applied in arriving at a fair and just sentence:
[14]
The personal circumstances of the appellant were dealt with by the
magistrate, that: at the time
of sentencing the appellant was aged
32, unmarried but father to a 7-year-old boy who had been residing
with the paternal grandmother
for four years as the mother of child
was deceased. The appellant achieved Grade 5 at school and was
previously employed, earning
R1 100.00 monthly. He had spent
four years in custody awaiting trial.
[15]
The magistrate considered the crime and the interest of the community
by stating that “the
gulf of criminality in South Africa”
should be stopped. The trial court alluded to seriousness of the
crime and stated that
it should send out a clear message that this
kind of offence would not be tolerated.
VII
ADJUDICATION OF THE APPEAL IN RESPECT OF SENTENCING
[16]
It has long been established that sentencing is pre-eminently the
prerogative of the trial court
and a court of appeal should be
careful not to erode this discretion.
[13]
Interference is warranted where there has been an irregularity that
results in the failure of justice, or when the court a quo
misdirected itself to such an extent that its decision on sentencing
is vitiated, or the sentence is so disproportionate or shocking
that
no court could have imposed it.
[14]
[17]
Counsel for the appellant referred us to
S
v PB
[15]
2013(2)
SACR 533
SCA at para 20 in respect of the approach to be followed by a court
on appeal when dealing with Act 105 of 1997:
“
What then is
the correct approach by a court on appeal against a sentence imposed
in terms of the Act? Can the appellate court interfere
with such a
sentence imposed by the trial court’s exercising its discretion
properly, simply because it is not the sentence
which it would have
imposed or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should,
in my view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is so
because the minimum
sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy reasons
.
It follows
therefore that a proper enquiry on appeal is whether the facts which
were considered by the sentencing court are substantial
and
compelling or not
.
” (own emphasis)
[18]
Mindful of the aforementioned principles, the submissions placed
before us for interference with
the sentence imposed by the trial
court, were considered.
VIII
EVALUATION OF THE TRIAL COURT’S JUDGMENT AND THE PARTIES’
SUBMISSIONS IN RESPECT
OF THE SENTENCE OF IMPRISONMENT FOR LIFE
[19]
The appellant did not testify in mitigation of sentence at the trial.
His counsel, Ms Kruger
both in the heads of argument and orally
before us, submitted that the trial court erred by not considering
the following circumstances
as sufficient to cause a deviation from
the prescribed sentence of life imprisonment:
The
trial court did not consider the fact that no evidence was tendered
that complainant suffered any trauma due to the incident.
[20]
Regrettably, the trial court was not provided with a Victim Impact
Report. It was however in
my view responsibly acknowledged by Ms
Kruger that the incident must have had an impact on complainant, but
she submitted that
no evidence of lasting emotional trauma was
suffered by complainant. In
S
v Vilakazi
[16]
it was held that:
“…
Even
though the district surgeon had observed no signs of stress it must
be accepted that no woman, least of all a child, would
be left
unscathed by sexual assault…”
I align myself with
this view.
The
complainant did not sustain any physical injuries or trauma, and
these factors should have been taken into account by the trial
court
in sentencing.
[21]
In respect of the ab
sence
of serious physical injuries, the Supreme Court of Appeal in S v SMM
[17]
put its stamp of approval on the interpretation of sec 51(3) of the
Criminal Law Amendment Act as was held in
S
v Nkawu
2009
(2) SACR 402
(ECG) by the trial judge: .
“
He correctly in
my view concluded that the proper interpretation of the provision
does not preclude a court sentencing for rape to take into
consideration the fact that a rape victim has not suffered serious or
permanent physical injuries,
along with other
relevant factors
, to arrive at a just and proportionate
sentence.”
para 26.
[22]
It was submitted that due to a lack of physical injuries and no
evidence of lasting trauma the
rapes
in casu
cannot be
considered to be the worst case of rapes, holding that these are
relevant factors as they are indicative of the lesser
objective
gravity of the offences.
[23]
The principle that while all rapes are serious, there are gradations
of seriousness was stated
in
S v Mahomotsa
2002 (2) SACR
435
(SCA) at 436. Ms Kruger accordingly pressed on us to find
that the factors mentioned herein above, together with the
appellant’s
personal circumstances (including the time that he
had spent in custody awaiting trial), are individually and
cumulatively sufficient
to constitute substantial and compelling
circumstances which justify the imposition of a lesser sentence. She
suggested a custodial
sentence of 20 years’ imprisonment to be
just.
[24]
It was contended by Mr Hoffman on behalf of the State that the
factors as alluded to do not constitutes
substantial and compelling
circumstances which should have caused the magistrate to have imposed
a lesser sentence and accordingly
the sentence of life imprisonment
should be confirmed. He alluded to the seriousness of rape as has
been stressed by our courts
over a lengthy time.
VI
IMPOSITION OF LIFE IMPRISONMENT
[25]
As regards the sentence, indeed there is no indication on the record
whether the accused is a
first offender or not and as correctly
pointed out by counsel for the appellant this is one of the factors
that a court takes into
account when determining an appropriate
sentence, however, the record also shows that on the day of the
sentencing hearing, the
Magistrate stated that the record of the
previous proceedings relating to sentencing was not available and due
to the lapse of
time he was also unable to transcribe that part as a
result, he asked the defence and the State to start from the
beginning and
address in mitigation and aggravation of sentence.
[26]
The defence counsel only mentioned the fact that the appellant had a
minor child as a factor
to be taken into account in terms of section
51(3). When pressed by the magistrate if that was the only factor he
then mentioned
the financial burden of keeping an offender in jail
especially for a long term.
[27]
We are of the view that, it is for the party relying on a certain
fact as a mitigating factor
to place it before court. Even if we are
wrong, the fact that the appellant was a first offender at the time
of sentencing, alone
or cumulatively with the fact that the appellant
has a minor child would not constitute a substantial and compelling
factor. On
the available facts, at the time the appellant was
convicted and sentenced he was not the primary caregiver of the
child. The grandmother
was the primary caregiver and the allegations
that she may not be able to care for the child forever was not
substantiated by facts.
The onus was on the appellant to adduce these
facts that he relies on.
[28]
Ms Kruger invited our attention thereto that from the record and the
manner in which the magistrate
articulated his reasoning an
impression is created that the trial court was of the view that it
had no option but to impose the
prescribed minimum sentence and
accordingly did not consider
mero motu
whether there are any
substantial and compelling circumstances warranting a deviation from
the prescribed sentence.
[29]
The judgment by the trial court can by no means be described as a
text book example of eloquence.
The judgment must be read in its
entirety, nit picking the lines or paragraphs of the judgment would
indeed result in a distortion
of the facts alluded to.
[30]
The record reflects, amongst others, the following:
30.1
“Now the legislator has then decided in a matter like
this
[inaudible] offence that the sentence that I must impose is simply
lifelong imprisonment for the accused person.
[18]
30.2
The trial court referred to the guidelines as enunciated in
S v
Malgas
[19]
and
stated:
“
if the act is
saying to me you shall impose a certain sentence I do not have much
leeway in moving away from that order
”
[31]
From a perusal of the record the most important finding by the trial
court is however the following
[20]
:
“
I am of the
opinion that [inaudible] factor, I am taking into account the
seriousness of this offence, the manner in which the complainant
was
approached by the accused, the way in which the rapes occurred, the
manner in which he ran away from the farm. And then in
the first
possible time where it was possible for the complainant to raise
alarm, she did just that. This is indicating to me this
is a fairly
serious rape. The accused was opportunistic when he was making his
advances. I am of the opinion that [inaudible] that
the period that
have been spend in jail until now combined with all the other
factors, [inaudible] will serve to let me decide
that there are
indeed substantial and compelling circumstances present for deviating
from the initial sentence that I must impose.”
The trial court hereafter
concluded as follows:
[21]
“
I decided to
myself although I am not happy with the instruction from a personal
point of view, I must follow the stare decisis.
I must listen to the
Higher Court to what the [inaudible] and I will do exactly that,
because [inaudible] and I am listening to
the orders from the
authority. Therefore, sir I do not have any other option but to
[inaudible] as follows…” The appellant
was sentenced to
imprisonment for life.
[32]
What can be gleaned from the judgment is that the
magistrate
has aptly dealt with the approach to sentencing when a minimum
sentence is prescribed (page 173 of the record at paras
16-23). He
went on to list the relevant authorities to substantiate his
conclusion that since he is a creature of statutes he is
obliged to
impose the minimum sentence unless there are reasons warranting a
deviation.
[33]
Appeals are not intended to correct grammatical errors, what is
important is whether in the record
of the proceedings the reasons for
the court
a quo’s
findings are set out in such a manner
that it can be determined how the conclusion came about.
[34]
The
seriousness of rape can never be overemphasized. Our courts have
consistently condemned rape in the strongest language as an
invasion
of the dignity, privacy, integrity and freedom of women.
See:
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) and
S
v Tshabalala
and Another
2020 (2) SACR 38
(CC).
[35]
Moreover, it must be accepted that the rape of a vulnerable child is
a reprehensible crime that
can and should never be tolerated in a
civil society.
The manner in which the rapes occurred
are to be considered as aggravating in my view. Not only was the
complainant on her way home
and dressed in her school attire when the
first rape occurred near the railway lines, but hereafter she had to
accompany the appellant
to what seemed to be a place not even proper
for human habitation. There she was left, as she testified scared of
night falling.
The appellant kept her there and returned later, only
to rape her once again in the early hours of the following morning.
It is
evident from the evidence that appellant was much older than
complainant and she was of slim built. Hereafter, frightened and
scared,
she had to accompany appellant to his employer where they
were transported to town. The complainant made a report to an unknown
male in her hour of need.
[36]
I am however mindful of the reminder in
S v Nkomo
2007
(2) SACR 198
(SCA) at page 200, that life imprisonment
as a sentence for rape should be imposed only where the case is
devoid of substantial
factors compelling the conclusion that such a
sentence was inappropriate and unjust. The Supreme Court of Appeal in
S v De Beer
2018 (1) SACR 229
(SCA) held
as follows at para 17:
“
This court has
pointed out on many occasions that injustices may occur if the
prescribed minimum sentences are imposed without a
proper
consideration of the existence of substantial and compelling
circumstances, including the question whether the prescribed
sentence
will be disproportionate to the offence, in the wide sense, in other
words, including all the circumstances of not only
the offence
itself, but also the circumstances of the parties involved.”
[37]
It is important in every case, to guard against an injustice being
perpetrated by adhering slavishly
to the prescribed minimum sentence.
VII
CONCLUSION
[38]
Having studied the record carefully and considering all submissions
before us, I am indeed satisfied
that, as found by the trial court,
neither the factors individually nor the cumulative effect of the
factors mentioned in paras
[18] - [23] above, constitute substantial
and compelling circumstances warranting a deviation from the
prescribed minimum sentence
of life.
It follows that
the appeal stands to be dismissed both in respect of conviction and
sentence.
VIII
THE ORDER
[39]
In the result, the following order is made:
1.
The appeal is dismissed.
2.
The conviction and sentence is confirmed.
C
REINDERS, ADJP
I
concur
NS
DANISO, J
On behalf of the
Appellant:
Mrs
S Kruger
Instructed by:
Legal Aid Board
BLOEMFONTEIN
On behalf of the
Respondent:
Adv R Hoffman
Instructed by:
Office of the DPP, Free State
BLOEMFONTEIN
[1]
Act 32 of 2007.
[2]
Act 105 of 1997.
[3]
Fn 2 Supra.
[4]
Act 38 of 2005.
[5]
Act 60 of 2000.
[6]
Act 51 of 1977.
[7]
Notice of Appeal dated 28 August 2017.
[8]
Record page 149/15-21.
[9]
Record page 148/10-12.
[10]
Record page 57/2-5.
[11]
S v
Francis
1991
(1) SACR 198
(A) at 204C-E;
J
v S
[1998]
2 All SA 267
(A) at 271C.
[12]
Record page 153/16-23.
[13]
S v
Rabie
1975
(4) 855
(A) at 857D-E
[14]
S v
Bogaards
2013
(1) SACR
(CC) at para 41.
[15]
2013(2)
SACR
533 (SCA)
[16]
2009
(1) SACR 552
SCA at 554 para 55-57.
[17]
2013
(2) SACR 292
(SCA)
[18]
Record page 12/ 22-25.
[19]
2001
(1) SACR 469
SCA.
[20]
Record page 178/20-25 & 179/2-8.
[21]
Record page 179/20-25.