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[2022] ZAFSHC 288
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Matladi v S (A36/2022) [2022] ZAFSHC 288 (24 August 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: A36/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the Appeal between:
MOTHUSI
MATLADI
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
,
KHOOE, AJ
HEARD
ON:
24
AUGUST 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by way of email and by release to SAFLII.
The date and time for hand-down is deemed to be 13h00 on 26 October
2022.
[1]
On 6 August 2021 the appellant was convicted by the regional court,
Bloemfontein for
the rape and sexual assault of a nine (9) year old
boy. He was subsequently sentenced to life imprisonment as provided
for in section
51(1) of the Criminal Law Amendment Act 105 of 1997
(“the
CLAA
”) in respect of the rape charge and for
the sexual assault, he was sentenced to twenty-four (24) months’
imprisonment
wholly suspended for a period of three years with
conditions.
[2]
The appellant was convicted after pleading not guilty to the rape
charge and in respect
of the sexual assault, he was convicted
pursuant to his admission that he had sexually assaulted the
complainant as alleged by
the State. This appeal is against the
conviction and sentence imposed in respect of the rape charge.
[3]
The conviction is supported by the State. It arose from the incident
which took place
on 13 November 2019 at the student centre where the
appellant was employed as a tutor. It was the State’s case that
the appellant
raped the complainant by inserting his finger into the
complainant’s anus and also sexually assaulted him by pulling
up his
underwear in an upward motion between his buttocks thereby
touching his penis and anus indirectly (this act is referred to as a
‘
wedgie
’).
[4]
The State relied on the testimony of the complainant, his mother Ms
M[....], the owner
of the study centre Ms Votyeka and the medical
practitioner who examined the complainant after the incident, Dr Van
der Walt.
[5]
The summary of State’s case is that, after subjecting the
complainant to several
wedgies
throughout the day the
appellant called the complainant who was playing with his friends
into the toilet and instructed him to take
off his trousers and
underpants. The appellant sat on the toilet seat and instructed the
complainant to sit on top of him facing
away and to bend forward. The
appellant then wiped the complainant’s behind with a toilet
paper and inserted his finger into
his anus. When the complainant’s
friend came and knocked on the toilet door looking for the
complainant the appellant told
the complainant keep quiet. He (the
appellant) responded and said he was busy in the toilet.
[6]
The appellant told the complainant not to tell anyone about what
happened in the toilet,
as a result when the complainant heard Ms
Votyeka calling out his name he did not respond. The appellant
instructed the complainant
to get dressed and when he was done the
complainant exited the toilet and went over to his mother who was
looking for him with
Ms Votyeka.
[7]
The complainant’s mother demanded to know where the complainant
was as she had
been looking for him all over with the assistance of
Ms Votyeka. She was even worried that he might have fallen into a
swimming
pool nearby. He told his mother that he was in the toilet.
Ms Votyeka also spoke to the appellant who was nearby the toilet, he
confirmed that the complainant was in the toilet.
[8]
On the way home, the complainant’s mother demanded an
explanation from the complainant
about his exact whereabouts when she
and Ms Votyeka were looking for him. It was then that the complainant
explained that the appellant
had given him a
wedgi
e in the
toilet. The complainant’s mother was furious, she drove back to
the study centre and confronted the appellant. He
denied performing a
wedgie
on the complainant.
[9]
Later at home, the complainant informed his mother that the appellant
had also inserted
his finger into his anus. He also demonstrated how
he had first wiped his behind and then penetrated his anus with his
finger.
The complainant’s mother called Ms Votyeka and relayed
what the complainant had reported to her. Ms Votyeka went to the
complainant’s
home and after discussing the matter with the
complainant’s mother it was agreed that a meeting will be
convened at the study
centre on the next day where the matter will be
discussed with the appellant before a criminal case is opened.
[10]
The appellant came to the meeting with his mother and two relatives.
At first he denied that
he had performed
wedgies
on the
complainant. He also denied that he penetrated him with his finger
but when it was suggested that the complainant be called
to the
meeting he backtracked and admitted of having performed
wedgies
on
the complainant on more than one occasion throughout the day. He said
it was done as a form of punishment as the complainant
was naughty.
He also admitted that he had instructed the complainant to sit on top
of him while his trousers and underpants were
off and that he also
wiped and touched his anus. His explanation was that he was wiping
the complainant because he was not clean.
With regard to the
penetration, he said he must have wiped too hard.
[11]
The complainant was examined by Dr van der Walt three days after the
incident, no injuries were
observed.
[12]
The appellant testified in his defence. He admitted to having
performed a
wedgie
on the complainant as a form of corporal
punishment. He denied having raped the complainant.
[13]
It is the appellant’s case that the trial court erred in
convicting him of rape because,
in determining whether the State had
proved its case against him beyond a reasonable doubt the trial court
rejected his version
that the complainant’s allegation
pertaining to the rape charge was an afterthought and accepted the
evidence of the State’s
witnesses and this is despite the fact
that there were material contradictions between the State’s
witnesses.
[14]
The principle applicable in appeals where the factual findings of a
trial court are attacked
is trite. A court of appeal is not entitled
to interfere with or tamper with the trial court’s judgment or
decision regarding
either conviction or sentence unless it (court of
appeal) finds that the trial court misdirected itself as regards its
findings
of facts or the law.
[1]
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 complainant was a child witness and also a single witness
implicating the appellant in the
rape charge therefore his evidence
called for a cautionary approach before it could be accepted. In
accepting the complainant’s
evidence, the trial court took into
account that despite his young age the complainant gave a detailed
explanation of how the rape
occurred. His version remained intact
even after extensive cross-examination which is a clear indication
that it was not an afterthought
but a reliable account of how he was
violated by the appellant.
[16]
A child witness’s veracity and ability to give a succinct
version of the events is an important
consideration in applying the
cautionary rules:
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.
[17]
In this matter, the complainant’s version was also corroborated
by his mother as the first
report of the rape incident and by Ms
Votyeka who assisted the complainant’s mother in looking for
the complainant and later
observed the appellant next to the toilet
from which the complainant ultimately emerged. The trial court was
thus correct in its
conclusion that the complainant told the truth.
[18]
In its quest to determine whether the evidence proffered by the State
proved the appellant’s
guilt beyond a reasonable doubt, the
trial court meticulously evaluated all the factors which pointed
towards the guilt of the
appellant against all those which were
indicative of his innocence as expressed in S
v Chabalala
2003(1) SACR 134
(SCA) at paragraph 15 that:
“
The
trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen
2001
(2) SACR 97
(SCA).
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 weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an ex post facto determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without assessing it
in the
context of the full picture presented in evidence...”
[19]
The appellant’s version was correctly rejected as false as he
had given conflicting versions
with regard to the reason for
administering
wedgies
on the complainant. He stated that it
was intended to be corporal punishment for ill-discipline as the
complainant had pushed another
child to the ground outside where they
were playing. Another version was that the complainant had misbehaved
in the class room.
It is also peculiar that when the appellant exited
the toilet he did not inform the complainant’s mother about
what he was
doing to the complainant in the toilet and the reason
thereof.
[20]
The appellant could also not give a sensible explanation why he chose
to administer the “punishment”
in the toilet instead of
his empty classroom. The ineluctable conclusion, according to the
trial court, was that the appellant
took the complainant to the
toilet in order to rape him.
[21]
I’m in agreement with the trial court’s conclusions. The
discrepancies in the appellant’s
version affected his
credibility. This fact is incidentally conceded in the appellant’s
heads of argument.
[2]
[22]
I’m thus satisfied that on the available facts, the dispute
between the State and the defence
with regard to whether the
appellant had raped the appellant on that day was resolved
appropriately. See also S
v Trainor
2003(1) SACR 35
(SCA) at para 9. The trial court correctly found that the State had
proved the guilt of the appellant beyond a reasonable doubt,
he was
correctly convicted.
[23]
Section 51(1) of the
CLAA
prescribes a minimum sentence of
life imprisonment for the rape of a child unless there are
substantial and compelling circumstances
warranting a deviation from
the prescribed sentence.
[24]
A court may impose a lesser sentence than the prescribed sentence
only when it is convinced that
the imposition of the prescribed
sentence would be unjust or disproportionate to the crime, the
criminal and the legitimate needs
of society,
S
v Malgas
[3]
,
para (22). See also
S
v Dodo
[2001] ZACC 16
;
2001
(1) SACR 594
CC.
[25]
The trial court is criticized by both the appellant and the State for
not imposing a lesser sentence.
In the appellant’s grounds of
appeal and also the parties’ respective heads of argument it is
contended that the trial
court erred by dismissing the appellant’s
personal circumstances as substantial and compelling reasons
warranting a deviation
from the prescribed minimum sentence and for
not taking into account that the appellant’s actions were not
gruesome in nature
and by overemphasizing the aggravating
circumstances of the matter.
[26]
The state and the defence are of the view that life imprisonment is
shockingly inappropriate
it must accordingly be set aside. According
the State, a sentence that would be suitable under these
circumstances is twelve (12)
years imprisonment of which six (6)
years imprisonment is suspended for five (5) years on condition that
the appellant is not convicted
of rape or an attempt thereto
committed during the period of suspension.
[27]
The appellant’s personal circumstances as recorded by the trial
court
are
that at time of sentencing he was 21 years old, unmarried and had no
dependants. At the time the offence was committed he was
employed as
a tutor for Mathematics and the complainant was one of his students.
He was also
studying
at the University of the Free State towards his Honours degree, he
was a first offender and had no history of violence.
[28]
The traditional mitigating factors such as an offender’
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 as on
their own, they constitute the flimsy reasons which Malgas
[4]
warned should not be elevated to the status of substantial and
compelling reasons to deviate from the prescribed minimum sentence.
[29]
There is a number of aggravating factors in this matter namely, the
age of the complainant and
the circumstances under which he was
violated. At the tender age of 9 he was violated at the place
where he, including his
parents thought he was safe.
[30]
It is also
aggravating that the complainant was violated by the person who was
supposed to protect him by virtue of him being in
a position of trust
and also similar to that of a parent (
loco
parentis)
.
[31]
The fact that the rape of the complainant was
preceded by various sexual assaults perpetrated by the appellant
on
the very same day and under similar circumstances is equally
aggravating.
[32]
On the appellant’s own admission, the complainant was not the
only child that he had sexually
violated by giving
wedgies
. He
stated that there were two or three other occasions where he had
given other children
wedgies
therefore the fact that the State
proved no previous convictions against him merely means he has never
been caught before not that
he was a first offender in relation to
these crimes.
[33]
The appellant’s complaint that the trial court over emphasized
the aggravating factors
of this matter is unsound. The nature and the
seriousness of a rape of a child can never be over emphasized.
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]
[34]
It was argued by both counsel that the fact that the applicant’s
actions were not gruesome
in nature should have been taken into
account as a substantial and compelling reason to impose a lesser
sentence. Reference was
made to several decisions particularly
S v
Nkawu
2009 (2) SACR 402
(ECG) in support of the
parties’ argument that a rape victim’s lack of physical
injuries must be a factor that must
be taken into account to
determine whether to deviate or not in terms of section 51(3) of the
CLAA.
[35]
Counsel ignore the fact that in
Nkawu
at page
406 para 17 Plasket, J duly pointed out that
an
apparent lack of physical injury to the complainant may be regarded
as a substantial and compelling circumstance justifying a
departure
from the prescribed sentence when considered along with other factors
cumulatively, viz: along with a basket of other
factors. At paragraph
18, he stated that:
“
I
am mindful of the following aggravating factors, namely the tender
age of the complainant, that the accused broke into her house
and
abducted her, that he was known to her and in this sense breached
the trust that she was entitled to repose in him and
that the
accused was on bail in respect of a charge of housebreaking at the
time. On the other hand, I take into account that the
accused is
young, that he was gainfully employed and supported his family and
his child and that the injuries he caused to the
complainant by his
act of raping her were not serious or permanent and that she
experienced no psychological trauma that was
out of the ordinary
and that cannot be treated. I consider that these factors, taken
cumulatively, amount to substantial and compelling
circumstances that
justify the imposition of a sentence other than life imprisonment.”
[36]
In this matter, according to
the
victim impact report
(exhibit
“D”) the appellant’s actions have not only affected
the complainant but the whole family has been left
traumatized. The
complainant is constantly moody, he picks fights with his older
brother, he overeats and struggles to sleep. His
school performance
has also been adversely affected. Since the incident, both the
complainant and his brother prefer to sleep in
their parents’
bedroom. The complainant’s mother has also not been spared of
the trauma, she constantly stays awake
in order to watch over her
sons. There is also the financial impact resulting from the costs of
psychological treatments to address
emotional and psychological
effects resulting from the appellant’s actions.
[37]
In
R
v Karg
1961
(1) SA 231
(A)
at 236G-H, Schreiner JA had the following to say in a passage
appearing at 2368:
"It
is not wrong that the natural indignation of interested persons and
of the community at large should receive some recognition
in the
sentences that Courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient,
the
administration of justice may fall into disrepute and injured
persons may incline to take the law into their own hands.
Naturally, righteous anger should not becloud judgment"
[38]
Rape
has
become an endemic. These crimes cause an outrage in the society which
looks to the courts for protection and punishment of the
offenders. A
failure by our courts to respond appropriately could result in
vigilantism which undermines our constitutional order.
It is for this
reason that the sentences that courts impose must also have an
element that speaks to the plight of society.
[39]
In
respect of a serious and prevalent crime such as rape of a child
retribution
and deterrence must come to the fore.
[6]
It is in that regard that I am of the view that the trial court
exercised its discretion properly and judicially in imposing the
sentence of life imprisonment.
[40]
There is no basis to interfere with the sentence, it reflects the
gravity of the crime and it
also speaks to the plight of the victims
and the society.
In the result,
I
would make the following order:
1.
The appeal against conviction and
sentence is dismissed.
NS
DANISO, J
I
concur
NJ
KHOOE, AJ
On
behalf of Appellant: Mr
Van der Merwe
Instructed
by:
Legal Aid South
Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
B J Classens
Instructed
by: The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
R
v Dhlumayo & Another
1948
(2) SA 677
(A);
S
v Mlumbi
1991 (1) SACR 235
(SCA) at 247g.
[2]
Page 3 to 4 at paragraph 3
[3]
2001 (1) SACR 469 (SCA).
[4]
Malgas supra para 9.
[5]
At
page 260 f-g.
[6]
S
v Mhlakaza and Another
1997
(1) SACR 515
(SCA)
at 519d-e.