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[2022] ZAFSHC 137
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van der Walt v S (A70/2021) [2022] ZAFSHC 137 (1 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: A70/2021
Reportable: NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
DAWIE
VAN DER WALT
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J
et
RAMOS, AJ
HEARD
ON:
24
JANAURY 2022
JUDGMENT
BY:
RAMOS AJ
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ representatives
by email
and by release to SAFLII on 01 June 2022. The date and time
for hand-down is deemed to be 01 June 2022 at 10H00.
INTRODUCTION
[1]
This is an appeal against both convictions and sentences. The
Appellant was convicted
in the Regional Court held at Bloemfontein on
15 March 2018 on the following counts: -:
Count 1
:
contravention of the provisions of section 3 read with provisions of
Act 32 of 2007 as well as provisions of Act 51 of 1977. The
main
allegation is that he penetrated minor child genitals to
wit
A
[....] L [....]with his fingers
Count 2
:
contravention of the provisions of section 3 read with provisions of
Act 32 of 2007 as well as provisions
of Act 51 of 1977. The main
allegation is that he penetrated minor child genitals to
wit
E
[....] P [....]with his fingers.
Count 3:
contravention of the provisions of section 5(1) read with provisions
of Act 32 of 2007 as well as
provisions of Act 51 of 1977. It is
alleged that he touched the private parts (vagina) of a minor child
to
wit
C [....] B [....] - M [....] while she was
sleeping.
Count 4:
contravention of the provisions of section 5(1) read with provisions
of Act 32 of 2007 as well as
provisions of Act 51 of 1977. It is
alleged that he touched the private parts (vagina) of the minor child
to
wit
E [....] P [....] while she was sleeping.
[2]
He was sentenced as follows:
Count 1:
ten (10)
years imprisonment
Count 2
: ten (10)
years imprisonment
Count 3 and 4:
five (5) years each, taken together for purposes of sentencing. The
effective term of imprisonment is twenty-five (25) years.
[3]
The Appellant’s application for leave to appeal convictions and
sentences was
refused by the court
a quo
. He approached the
High Court by way of petition and was granted leave to appeal by
members of this court on 15 February 2021.
GROUNDS
OF APPEAL
[4]
The Appellant’s grounds for the appeal are the following: -
i)
the court
a quo
erred in finding that the state proved its
case beyond reasonable doubt
ii) the
court
a quo
erred in finding that the evidence of minor
complainants, who were single witnesses, was satisfactory in all
material respects
iii) the
court
a quo
erred in finding the evidence of the minor
complainants as reliable
iv) the
sentence of twenty-five (25) years was shockingly harsh and
inappropriate.
ADJUDICATION
OF THE APPEAL
[5]
It is trite law that a court of
appeal will not likely intervene with the credibility findings
of the
trial court. In the absence of an irregularity or misdirection, the
court of appeal is bound by such credibility findings,
unless it is
convinced that such findings are clearly incorrect.
[1]
[6]
When dealing with the trial court’s findings of fact, the court
of appeal should
take into account that the trial court was in a more
favourable position to form a judgment because it was able to observe
the
witnesses during their questioning and was absorbed in the
atmosphere of the trial.
[2]
Therefore, the court of appeal will normally accept factual findings
made by the trial court, unless there is some indication that
a
mistake was made. In S v Hadebe
[3]
Marais JA eloquently stated the approach in the following terms: -
“
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing
of appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial
Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial court are so well known that
restatement is unnecessary.”
[7]
However, in order to ensure a convicted person’s right of
appeal is not illusionary,
the court of appeal has a duty to
investigate the trial court’s factual findings in order to
ascertain their correctness
and if a mistake has been made to the
extent that the conviction cannot be upheld. It is the duty of the
court of appeal to interfere.
[4]
SUMMARY
OF THE AVAILABLE EVIDENCE
THE
STATE CASE
[8]
The state called three complainants in this matter namely, AL, EP and
CM. The first
complainant was eight years old at the time of the
incident and nine (9) years old when she gave evidence in court via
the services
of an intermediary. She was uncertain of the exact date
of the incident but it was common cause that it occurred in and
around
the Easter weekend of 2016. She testified of the events, which
transpired at a sleepover at the home of the Appellant who was in
a
relationship with her Aunt.
[9]
The three complainants together with the Appellant and his girlfriend
(“aunt”)
slept in the living room that evening. The
complainant AL, slept on the couch while the accused and his
girlfriend slept on a mattress
on the floor positioned adjacent to
AL.
[10]
At some stage during the night she woke up feeling someone touching
her. She looked and saw that
it was the Appellant touching her
vagina. She referred to her private part as her “foenoenoekie”.
She illustrated the
area where he touched her, using an anatomically
correct doll used in proceedings involving child victims. She pointed
to the dolls
private area depicting the vagina.
[11]
She explained further that his fingers went inside her vagina
underneath her underwear. She was
clear that his fingers were inside
her vagina and explained that “hy maak sy vingers so op en af
dan, en hy doen goeters”.
Even though it was dark and the
lights were off, she could see the Appellant smiling while he was
fiddling with her. He promised
to buy her a chocolate if she kept
quiet which prompted her not to tell anyone.
[12]
A few months later, her mother questioned her whether anyone has ever
touched her private parts.
This discussion prompted her to tell her
mother that the Appellant touched her vagina on previous occasion.
Her mother confirmed
her evidence to the extent that they had this
discussion whereupon her daughter made the report to her.
[13]
Under cross-examination it was put to her that the Appellant denies
the allegations and further
that her mother told her to make up the
story. She maintained, that what she described did happen and that
there was no collusion
with her mother to falsely implicate the
Appellant.
[14]
The second complainant EP was ten (10) years old at the time of the
incident and 11 (eleven)
years old when she gave evidence in court.
She confirmed that she was with the first witness, her cousin, when
they slept over
at the Appellant’s place. She too could not
confirm the date. She was asleep and had no independent recollection
of the Appellant
touching her. The third complainant told her that
the Appellant had touched her under the blanket. She woke up the next
morning
to find her pants pulled down to her knees. She explained
that the accused touched her on the place that he should not. In her
words, she stated that, “Hy het gepeuter waar hy nie mag nie
peuter nie”.
[15]
She recalled that her vagina was sore when urinating and that she saw
blood. This aspect was
disputed under cross-examination as it
transpired that it was not included in her statement to the police.
Her response to the
discrepancy was that she was afraid. She
testified further that the morning after the sleepover she and AL
were taking a bath in
the bathroom, when the Appellant entered and
inserted his finger into her vagina. The Appellant told them not tell
anyone and promised
to buy them sweets in return. She says that AL
saw what had happened. However, AL did not testify either
independently or in corroboration
about this incident.
[16]
She testified that she told her grandfather that the Appellant
touched her. The grandfather was
called to testify and confirmed that
she told him this, but he did not think much of the report because
according to him the child
had an overactive imagination at times and
would tell fabricated stories.
[17]
The third complainant, CM testified that she too slept over at the
appellant’s house that
evening when the incident occurred. She
was a friend of complainant EP who had invited her to sleep over. She
testified that she
woke up when the accused was touching her while
she was underneath the blankets. The incident occurred on the same
night referred
to by the previous two witnesses. She testified that
the accused touched her vagina whilst she was still fully clothed.
His hand
was on top of her clothes not inside. She was able to
illustrate the place where he touched her with the use of
anatomically correct
dolls. She pointed to the vagina of the female
doll. She testified that she witnessed the Appellant reaching over
her to the second
complainant EP while she was asleep.
[18]
The state also called Cornelia Lutzke who is the mother of AL, the
first witness. AL reported
the incident to her. In response to the
averment that she orchestrated the allegations against the Appellant,
she stated that she
would never put her daughter through the trauma
of the court proceedings simply to get back at the Appellant. The
state called
Quinton Swanepoel, the grandfather of AL and EP. He
confirmed that there were issues between them but that he had no
reason to
falsely implicate the Appellant.
[19]
The state called no further witnesses and the medical reports were
handed in by agreement and
forms part of the evidentiary material.
The report which was completed on 13 December 2016 in respect of the
first witness, AL
notes no abnormalities and concludes that, “
child
sexual abuse can neither be confirmed nor negated’
. No
further medical evidence was presented in respect of the other
complainants.
[20]
The Appellant’s defence was a bare denial. He avers that the
allegations were levelled
against him because of a family dispute,
which arose between himself and his girlfriend’s family. He
alleges that the first
two complainants were instigated by their
mothers to make the false allegations and that the third complainant
was instigated because
she is a friend of the first two complainants.
They discussed the story and plotted against him because he failed to
provide for
them financially as he had done in the past.
[21]
He maintained his innocence throughout his evidence in chief and
cross-examination. He did not
dispute that the complainants slept at
his home on occasion. He conceded that there was a sleep over in and
around the Easter period.
Initially he testified that AL slept in the
other room with her mother, but later testified that he in fact would
not have been
there because he was driving long haul trips during
that time. Therefore, he would not have been sleeping there at night
during
that time period and hence the complainants versions cannot be
true.
PARTIES’
SUBMISSIONS
[22]
Ms Kruger on behalf of the Appellant argued that the court a quo
erred in its finding of credibility
particularly concerning the
second complainant on count 2 and 4. She pointed out that the
complainant was asleep and unaware of
the alleged sexual assault.
Furthermore, AL fails to corroborate her on the allegations contained
in count 2. According to EP,
AL was present in the bathroom the
morning when the Appellant inserted his finger into her vagina. She
further argued that the
complainants’ evidence should be
approached with caution, as they are children and single witnesses to
the incidents allegedly
perpetrated against them.
[23]
Advocate Claassens on behalf of the State argued that there is no
evidence to support the Appellant’s
averment that he is being
falsely implicated. She argued that the complainant’s evidence
should be viewed in the light of
their ages and the stressful
conditions of having to testify in court. She argued that the
contradictions are not material and
that it is highly improbable that
the complainants would have been told what to say because the details
and knowledge of the incidents
is not within the realm of knowledge
of such young children. She argued that the trial court correctly
rejected the Appellant’s
version on the basis that it was not
reasonably possibly true.
EVALUATION
OF THE EVIDENCE
[24]
The learned magistrate evaluated the credibility of witnesses and
found that the contradiction
which were highlighted by the defence
were not material to the extent that it vitiates the state case in
its totality. He took
into account their tender age and the daunting
task of having to testify in an intimidating environment. The learned
magistrate
found that the complainant’s versions were so
similar in their description of the events that occurred that night.
The court
found that the evidence of the mother and grandfather was
not exaggerated and that they were not fabricating the story or part
of a vendetta against the accused.
[25]
The
court a quo
in this matter specifically remarked that, in
spite of their ages, the complainants testified in a clear and
logical fashion, and
made a good impression on the court. The
court
a quo
found that the Appellant did not impress as a credible
witness. His version changed on material aspects and he could not
provide
plausible explanation for the discrepancies.
[26]
It is trite law that the evidence of children and single witnesses
should be approached with
necessary caution due to the inherent
dangers. In
Woji
v Santam Insurance Company Ltd
[5]
,
a civil judgment, the
Court stated:
“
The question which
the trial Court must ask itself is whether the young witness'
evidence is trustworthy. Trustworthiness, as is
pointed out by
Wigmore in his Code of Evidence para 568 at 128, depends on factors
such as the child's power of observation, his
power of recollection,
and his power of narration on the specific matter to be testified. In
each instance the capacity of the
particular child is to be
investigated. His capacity of observation will depend on whether he
appears "intelligent enough
to observe”. Whether he has
the capacity of recollection will depend again on whether he has
sufficient years of discretion
"to remember what occurs"
while the capacity of narration or communication raises the question
whether the child has
"the capacity to understand the questions
put, and to frame and express intelligent answers" (Wigmore on
Evidence vol
II para 506 at 596). There are other factors as well
which the Court will take into account in assessing the child's
trustworthiness
in the witness box. Does he appear to be honest is
there a consciousness of the duty to speak the truth?”
[27]
In
Matshivha v S
the court cited with approval the
dicta
of
Nugent JA in
S v Vilakazi
where the following was said: -
“
From prosecutors
it calls for thoughtful preparation, patient and sensitive
presentation of all the available evidence, and meticulous
attention
to detail. From judicial officers who try such cases it calls for
accurate understanding and careful analysis of all
the evidence.”
[6]
[28]
The complainants 1 and 3 provided much detail of the incident and the
first complainant AL gives
a vivid account of how she woke up feeling
someone touching her. Even though it was dark, she saw the Appellant
and even recalled
that he was smiling whilst inserting his finger in
vagina. The second complainant EP, admits that she was asleep when
she was touched
by the Appellant and was told what happened by the
third complainant. She relayed evidence that the Appellant inserted
his finger
in her vagina the next morning whilst bathing. The first
complainant who was with her in the bath does not corroborate this
version,
but from the evidence, it appears that the information was
not elicited from her either.
[29]
Even though they were sleeping together when the first sexual
assaults occurred each were single
witnesses as to what happened to
them personally. The evidence of single witness is regulated by
Section 208 of the Criminal Procedure
Act
[7]
,
which provides that an accused may be convicted of any offence on the
single evidence of any competent witness. The case law clearly
promotes the notion that the exercise of the caution must not be
allowed to displace the exercise of common sense. In addition
to the
single witness rule, the court is further called upon to approach the
evidence of the child witness with caution.
[30]
In
S
v Sauls
[8]
the court expounded on the issue of the creditability of a single
witness. It was stated as follows –
“
there is no
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 demerits and
having done so should decide whether it is satisfied
that the truth
have been told, despite the shortcomings or defects or contradictions
in the evidence.” (Translation from
Afrikaans)
[31]
In
State
v V
[9]
, Zuman JA said as follows:
“
in view of the
nature of the charges and the ages of the complainants it is well to
remind oneself at the outset that while there
is no statutory
requirement that the child’s evidence must be corroborated it
has long been accepted that the evidence of
young children should be
treated with caution and the evidence in a particular case involving
sexual conduct may call for a cautionary
approach.”
[32]
The complainants did not report the incidents to their parents
immediately but for EP who reported
to her grandfather, who for some
strange reason did not take her seriously until AL spoke out. Only
then did the parents take action
and reported the accused to the
authorities. In this regard, section 59 of the Criminal Law Amendment
Act
[10]
specifically precludes
the court from drawing a negative inference from the length of delay
between the alleged commission of such
offence and the reporting
thereof. The court a quo dealt with this issue and correctly found
that the complainants provided plausible
explanations for the delay
in reporting the matter. The Appellant told them not to tell anyone
and promised a reward of sweets
and chocolates. Given their age and
the relationship to the Appellant, their actions cannot be viewed as
unreasonable or improbable.
[33]
The Appellant avers that complaints versions are fabricated as part
of a conspiracy against him.
This version could potentially have held
water if only the two family members accused him of rape. However,
the third complainant
who has no relation the family also levelled an
allegation against him. She would have had no reason to falsely
implicate the accused
and place herself through the trauma of having
to testify in court.
[34]
It is trite that in criminal proceedings the Appellant bears no onus
to convince the court that
he is innocent. The State bears the onus
to prove the accused’s guilt beyond a reasonable doubt.
Furthermore, the accused’s
version cannot be rejected solely on
the basis that it is improbable, but only once the trial court has
found on credible evidence
that the accused’s explanation is
false beyond a reasonable doubt.
[11]
[35]
In
S
v Chabalala
[12]
Heher AJA dealt with probabilities 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.”
[36]
The Appellant was well known to the complainants,
so identity is not in dispute and neither is the fact
that the
complainants had on more than one occasion slept over at his house.
The exact date of the incident was not determined
with certainty but
it is clear that it occurred in and around the Easter period of 2016.
What remains in dispute is whether the
appellant perpetrated the rape
and sexual assault as alleged by the state.
[37]
It is evident from the record that the Appellant was an
unimpressive witness and contradicted himself on
material aspects.
His version was inherently improbable to the extent that it cannot be
accepted as reasonably possibly true. I
am of the view that the
court
a quo
correctly rejected the Appellant’s version as false.
[38]
Having considered the evidence and arguments carefully and I am
satisfied that this court should
not interfere with the trial court’s
findings in respect of count 1 and 3.The Appellant failed to show
that such findings
were vitiated by material misdirection or that the
record indicates the commission of mistakes.
[39]
However, the position is somewhat different with regards to count 2
and 4 which relates to the
same complainant EP. The trial court
approached the evaluation of the evidence of the complainants
collectively. He did not deal
with each complainant’s evidence
individually. These are independent events. The learned magistrate
acknowledged that the
evidence of the complainant should be
approached with caution due to her tender age as well as the fact she
was a single witness.
[40]
The learned magistrate stated in his judgment that ,”although
all three complainants are
all single witnesses as well as child
witnesses in respect of their ordeals , substantial corroboration can
be found for the evidence
placed on record by these three child
witness in their different version of what happened”. Ms
Kruger, on behalf of the Appellant
argued that EP (complainant 2) was
asleep when the alleged sexual assault occurred and was told by
complainant 3 that the Appellant
had touched her. She further argued
that the complainant’s evidence in respect of count 4 only
emerged during consultation
with the complainant. The alleged rape is
not mentioned in her statement and was further not corroborated by AL
complainant 1,
who according to her was present when the incident
occurred.
[41]
The State conceded that the evidence in respect of count 2 was
hanging on a thread and not well
supported or corroborated because
the complainant was not asked to explain the contradiction between
her statement and evidence.
During her evidence, she stated that her
pyjamas pants was pulled down to her knees when she woke up the next
morning whereas her
in her statement, she stated that her pyjamas was
normal. This discrepancy was not clarified in her evidence either.
[42]
The evidence of complainant 2, EP is not clear is every respect.
Complainant 1, AL does not corroborate
her evidence concerning the
rape in count 4. In addition, discrepancies were highlighted in her
statement to the police and her
evidence in court. Material
contradictions emerge which affects the creditability and reliability
of her evidence. The state referred
to the
S
v Mafaladiso
[13]
where the court warned that the discrepancy between different
versions should be approached with circumspection. In that matter
the
court held that:
“
The different
versions must be evaluated holistically. The evaluation includes the
circumstances in which the versions were given,
reasons for the
discrepancies, the effect of the discrepancies on the witness’s
creditability and whether the witness had
sufficient opportunity to
explain the discrepancies. Lastly, the witness statement to the
police must be weighed up against the
witness’s viva voce
evidence. The discrepancies and contradictions were further not
explained by the witness.”
[43]
The complainant EP, failed to provide satisfactory explanations for
the discrepancies and contradictions,
which emerged from her evidence
and her statement to the police. The omission of the rape allegation
as set out in count 4 in her
statement is glaring and amounts to a
material discrepancy when evaluating the totality of her evidence.
The allegations were serious
and the state should have made greater
effort to elicit the evidence from the first complainant to
corroborate her evidence. The
state did not produce any medical
evidence to corroborate the complainant’s evidence in support
of the rape. Material contradictions
emerge which affect the
creditability and reliability of her evidence.
[44]
The trial court clearly erred in its application of the cautionary
rule with regards to the complainant’s
evidence in respect of
count 2 and 4. The learned magistrate failed to address the glaring
discrepancies in their evidence. In
as much as the offences relate to
the incident, which occurred on the same weekend, the learned
magistrate should have evaluated
the quality of the evidence of the 3
complainants individually. Instead, the trial court approached the
evidence of the three complainants
as a collective and found that
“the version of the witnesses at the scene were similar and
that the contradictions were of
a trivial nature”.
[45]
The learned magistrate reasoned that it would highly improbable that
the parents would have told
the complainants what to say in order to
falsely incriminate the Appellant. This may be true but honesty and
probability is not
the only requirement for a court to find that the
evidence of a single, child witness is satisfactory in all material
respects.
In light of the discrepancies and contradictions there
should have been corroboration and at most a reasonable explanation
for
discrepancies.
[46]
The contradictions in the evidence of Complainant 2 in respect of
count 2 and 4 were glaring
and the trial courts finding that it was
trivial was incorrect. The trial court was clearly misdirected when
making the finding
regarding the reliability and creditability of the
evidence of Complaint 2 in respect of count 2 and 4. The convictions
and resultant
sentences cannot stand.
SENTENCE
IMPOSED
[47]
I now turn my attention to the issue of sentencing in respect of the
remaining counts 1 and 3.
The
court
a quo,
in
considering an appropriate sentence took into account,
inter
alia
,
the triad that is the purpose of punishment and the traditional aims
of punishment, which include deterrence, reformation and
retribution.
Leading authorities were referenced such as
S
v Zinn
[14]
and
S
v Thonga
.
[15]
That is an indication
that the
court
a quo
was
alive in ensuring
the
equilibrium that is necessary when striking a balance between the
competing factors of the triad.
[16]
[48]
The Appellant’s conviction was subject to the prescribed
minimum sentences of life imprisonment
on counts 1 as prescribed in
Section 51(1) of the Criminal Law Amendment Act.
[17]
However, in terms of Section 51(3), the court may deviate from the
prescribed minimum sentences if there are substantial and compelling
circumstances justifying such deviation.
[49]
Having considered the fundamental sentencing guidelines and the
applicable authority the trial
court found that there were
substantial and compelling circumstances justifying a deviation from
the prescribed minimum sentence
of life imprisonment in respect of
count 1. The trial court found that the manner in which the
penetration occurred on the rape
counts were not as severe as with
“full intercourse” as he termed it. He also took into
account that the appellant
was a first offender. I am not in full
agreement with his finding that the digital penetration is not a
serious a rape as with
penetration with a penis. I however accept
that the learned magistrate in his attempt to substantiate the
deviation from the prescribed
minimum sentence was trying to
highlight that the penetration could have been worse if the Appellant
had used his penis.
[50]
The Appellant’s personal circumstances were unremarkable but he
could be regarded as relatively
young and is a first offender. Mrs
Kruger submitted that the sentences imposed by the
court a quo
are disproportionate and argued that at best the court should have
ordered that all the sentences run concurrently.
[51]
However, the court should not lose sight of the fact that there are
two very young complainants
impacted by the accused actions. The
incident have affected them emotionally in one way or another. They
have been robbed of their
innocence and violated at such a young age.
[52]
Communities and the Country as a whole are outraged by the prevailing
sexual abuse perpetrated
against women and children in particular.
There is a legitimate expectation that the courts must impose
sentences, which reflect
the seriousness of this crime. The courts
have recognised this scourge and expressed outrage as illustrated in
the well-known matter
of
S
v Chapman
.
[18]
[53]
It is trite law that a court of appeal will not lightly interfere
with an imposed sentence. The
powers of the court of appeal are
relatively limited to those instances where the sentence is vitiated
by misdirection or where
the sentence imposed is startlingly
inappropriate and induces a sense of shock or where there is a
striking disparity between the
sentence imposed, and that which a
court of appeal would impose.
[54]
The trial court gave due cognisance to the circumstances surrounding
the offence as well as the
appellants personal circumstances. The
court was mindful of the discretion afforded in the
S
v Malgas
[19]
decision to the effect that the sentencing court must independently
apply its mind to the question whether the prescribed sentence
is
proportionate to the crime. If the prescribed sentence is not
proportionate then substantial and compelling circumstances as
contemplated in section 51(3) Act 105 of 1997 exist. The trial court
displayed mercy and imposed a sentence significantly less
than the
prescribed minimum sentence. I therefore do not find that the
sentence imposed by the trial court is startlingly inappropriate
or
induces a sense of shock.
CONCLUSION
[55]
I therefore conclude that insufficient reasons have been advanced for
the court
of
appeal to interfere with the convictions and sentences in respect of
count 1 and 3. Undoubtedly the convictions and sentences
on count 2
and 4 that have been dismissed will have a bearing on the effective
sentence to be served by the Appellant. The conclusion
that the
sentences must be served concurrently is based on sound reasoning. I
do not intend to temper with it.
ORDERS
[56]
I propose the following orders:
56.1.
The appeal in respect of convictions on count 2 and 4 is upheld and
the convictions and resultant
sentences are set aside.
56.2.
56.2.1.
The appeal against the convictions on count 1 and 3 is dismissed.
56.2.2.
The sentence of ten (10) years imprisonment in respect of count 1 is
confirmed.
56.2.3.
The sentence in respect of count 3 is set aside and replaced with
five (5) years imprisonment.
56.2.4.
In terms of
section 280(2)
of the
Criminal Procedure Act 51 of 1977
the sentence on count 3 shall be served concurrently with the
sentence of ten (10) years imprisonment imposed on count 1. The
effective term of imprisonment is ten (10) years.
56.3.
The order in terms of section 50 of the Criminal Law (Sexual Offences
and Related Matters) Amendment Act,
Act 32 of 2007 is confirmed.
56.4.
The order in terms of
section 103
of the
Firearms Control Act 60 of
2000
is confirmed.
56.5.
The sentence is antedated to 15 March 2018.
A.
RAMOS AJ
I
concur and it is so ordered
M.A.
MATHEBULA J
On
behalf of the Appellant:
S. Kruger
Instructed
by:
Legal Aid SA
BLOEMFONTEIN
LOCAL OFFICE
On
behalf of the Respondent:
Adv B.G. Claassens
Instructed
by:
Office of the DPP, Free State
BLOEMFONTEIN
[1]
S
v Francis
1991
(1) SACR 198
(A) at 204c - e;
S
v Mkohle
1990
(1) SACR 95
(A) at 100e
[2]
Schmidt
and Rademeyer, Law of Evidence, LexisNexis ed para 3 – 40 &
judgments relied upon
[3]
1997 (2) SACR 641
(SCA) at 645e - f
[4]
S
v M
2006
(1) SACR 135
(SCA) para 40; Protea Assaurance CO Ltd v Casey
1970
(2) SA 643
(A) at 648E.
[5]
Woji v
Santam Insurance Company Ltd
1981
(1) SA 1020
(A) at 1021.
[6]
2014 (1) SACR 29
(SCA) at para 24.
[7]
Act 51 of 1977
[8]
1981 (3) SA 172
(a) to (h
[9]
2002 (1) SACR 453
SA 454 (2)
[10]
The
Criminal Law amendment act 32 of 2007
[11]
S v V
2000 (1) SACR 453
(SCA) at 455B.)
[12]
2003 (1) SACR 134
(SCA) para 15; and also
S
v V
2000
(1) SACR 453
(SCA) at 455a - c
[13]
2003
(1) SACR 583 (SCA).
[14]
1969 (2) SA 537 (A),
[15]
1993
(1) SA 537 (A)
[16]
S
Zinn
[17]
Criminal
Law Amendment Act 105 of 1997
[18]
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) paras 3 & 4
[19]
2001 SACR 469
SCA