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2022
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[2022] ZAFSHC 176
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C.B v S (A7/2022) [2022] ZAFSHC 176 (19 July 2022)
IN THE
HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
APPEAL
NUMBER: A7/2022
Reportable:
NO
Of Interest
to other Judges: NO
Circulate to
Magistrates: NO
In the matter
between:
C[....]
B[....]
APPELLANT
and
THE
STATE
RESPONDENT
HEARD
ON:
18
JULY 2022
CORAM
: NAIDOO,
J et MHLAMBI, J
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
19
JULY
2022
[1]
The appellant was
convicted on 15 August 2017, in the Bloemfontein Regional Court, for
the rape of two minor children, the charges
relating to
contraventions of section 3 of the Criminal Law (Sexual and Related
Matters) Act 32 of 2007 (the Sexual Offences Act),
read with the
relevant provisions of the Criminal Procedure Act 51 of 1977 (the
CPA), The Criminal Law Amendment Act 105 0f 1997
(Minimum Sentences
Act) and the Children’s Act 38 of 2005. The appellant was
sentenced on 29 January 2018 to eighteen
years’ imprisonment on
each count, which were ordered to run concurrently. He was, therefore
sentenced to an effective Eighteen
(18) years in prison. The
appellant approaches this court with the leave of the court
a
quo
, and
the appeal lies against his conviction. Adv (Ms) S Kruger appeared
for the appellant and Adv (Mr) T Sekhonyana for the respondent.
[2]
The Appellant’s
grounds of appeal against the conviction are, in essence, that the
court
a quo
erred in:
2.1
finding
that the state had proved its case beyond reasonable doubt, and
2.2
the
contradictions in evidence of the state witnesses, particularly the
complainants were not material;
[3]
The background to this matter, briefly, is that the appellant was
married to the third
state witness (Mrs B[....]) at the time of the
incidents which are the subject matter of this case. The latter is
the mother of
the two complainants in counts one and two and the
appellant was their stepfather. On 10 October 2015, after consuming
alcohol,
the appellant was playing with the two complainants in the
bedroom of the appellant and Mrs B[....]. The latter was watching
television
and asked them to go and play in the children’s
bedroom, which they did. They were noisily having a pillow fight and
after
a while there was silence. Mrs B[....] went to the children’s
bedroom to investigate and was confronted by the sight of her
younger
daughter (D) sitting on the face of the appellant, with her pyjamas
pulled down to her legs. The older daughter (N) was
under a blanket
with her face at or near the appellant’s exposed genital area.
When she asked the appellant what was going
on he said that if she
did not like what she saw, she could leave the house.
[4]
The appellant thereafter went to the bathroom to brush his teeth and
wash his mouth.
He thereafter went to his bedroom and fell asleep. At
the time, the two complainants were six and seven years old. Mrs
B[....]
then asked the girls what had happened. N told her that the
appellant took a blanket from the cupboard, lay on the bed, pulled
his shorts down and made her suck his penis. Through an opening in
the blanket she noticed D was sitting on the appellant’s
face
while he licked the child’s genitals. Mrs B[....] called her
friend and told her what had happened and requested the
friend to
call the police. The police arrived shortly thereafter and arrested
the appellant.
[5]
The appellant’s version was that his wife was angry that he
bought wine instead
of food, and that he borrowed money to buy a
second bottle of wine. He also confronted her about not looking for
employment and
said to her that if she did not find employment by the
end of that month, she and the children (the two complainants) must
leave
his house. He consumed two bottles of wine and he thereafter
played with N and D, initially in the room in which his wife was
watching
television and subsequently in the children’s bedroom.
He passed out and fell asleep. He was wakened by the police at
approximately
11.30pm. He was not on the children’s bed but in
his own bed. He did not know how he got there because he was
intoxicated.
The appellant proffered the version that his wife
fabricated the incident because he threatened to kick her out of the
house. He
also said that if anything in fact happened, it is the
children who interfered with him, due to their late father exposing
them
to sexual behaviour.
[6]
The trial court bears the task of analysing and evaluating evidence.
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 has
the advantage of seeing and hearing witnesses, which 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.
[7]
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.”
[8]
In the present matter, the trial court undertook a comprehensive
analysis of the evidence
for the state and the appellant, as well as
the law applicable to the facts. The Court reminded itself
extensively of the extreme
caution required when dealing with the
evidence very young children. In this case the complainants were six
and seven years old
when the incidents occurred, and they testified a
year later, when they were seven and eight years old. The court
a
quo
eloquently articulated that the reason for caution when
presented with evidence of a very young child is that such evidence
is
potentially unreliable and untrustworthy. The manner in which the
court approached the evidence of the complainants demonstrated
amply
that it never lost sight of the caution to be exercised in this
regard and particularly that it guarded against “the
possible
imaginativeness and suggestibility” of the two young
complainants.
[9]
The appellant complained of contradictions in the evidence of the two
complainants
and their mother, and that the court erred in finding
that such contradictions were not material.
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 comprehensively with each such
contradiction or difference, before concluding that they
were not
material. The discrepancies related, inter alia, to such aspects as
whether the appellant or N took the blanket from the
cupboard, the
position of D when she sat on the appellant’s face and whether
D jumped off his face or the appellant removed
her from his face. Ms
Kruger, in any event, conceded that such contradictions were not
material.
[10]
The court
a quo
was at all times cognisant
and mindful of the tender ages of the complainants and the fact that
children testified differently
to adults. Its analysis and manner of
dealing with the discrepancies demonstrated this amply. The court’s
impression of the
honesty and reliability of the two complainants was
correctly fortified by the fact that it was not put to either of them
that
what they said in their statements to the police shortly after
the incident was largely the same as their narration in court, a
year
later. This is particularly so as the police arrived very shortly
after the incident, leaving little or no time for their
versions to
have been suggested to them by their mother or for them to have been
coached in any way. I should perhaps remark that
it is common sense
that complainants as young as the two in this matter do not have the
mental or intellectual capacity to fabricate
and describe in such
detail the incidents of sexual violence, as they did in this matter,
and much less to remember such minute
details a year later, unless
such incidents did in fact occur.
[11]
The appellant took the point that the state did not prove sexual
penetration in count 2, as defined
in the Act and therefore the
appellant ought to have been found guilty of sexual assault as
defined in section 5 of the Sexual
Offences Act instead of rape in
terms of section 3. This was not raised as a ground of appeal.
However, if the provisions of section
3 and 5 of the Act are
examined, I have no reason to fault the analysis of the court
a
quo
of the evidence in this regard and I am, therefore, satisfied
that the court
a quo
was correct in finding that the
complainant in count 2 was raped, in accordance with the definitions
and provisions of the Sexual
Offences Act.
[12]
Similarly, with regard to count 1, it was raised at the trial and
again in oral argument before
us that the interpretation of the word
“moes” used by N when she said “
Ek moes sy
verkeerde plek suig
”, can be that she had to but did not
suck the appellant’s penis. The trial court dealt
comprehensively with this aspect
and even called on the prosecution
and defence to address the court in this regard. The court correctly
found that when that word
is viewed in the context of all the
evidence surrounding this aspect, the only reasonable meaning to be
assigned to these words
is that she (meaning N) had to do it and had
no choice. Again, I cannot fault the reasoning of the trial court in
this regard.
Ms Kruger did not pursue this point with any vigour and
left the interpretation in the hands of this court.
[13]
In the circumstances, the following order is made:
13.1
The appeal is dismissed
13.2
The conviction and sentence imposed on the appellant are hereby
confirmed.
NAIDOO, J
I concur.
MHLAMBI, J
On behalf of
appellant:
Adv S Kruger
Instructed
by: Legal
Aid South Africa
Bloemfontein
Local Office
On behalf of
respondent:
Adv. T Sekhonyana
Instructed
by:
The
Office of the DPP
BLOEMFONTEIN