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B.P.K v S (A28/2022) [2022] ZAFSHC 203 (25 August 2022)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of raping a 12-year-old girl and sentenced to life imprisonment — Trial Magistrate erred in finding injuries existed based on the J88 report, which indicated no injuries to the complainant's private parts — New evidence from a Victim Impact Report raised reasonable doubt regarding penetration — Conviction for rape set aside, but Appellant found guilty of sexual assault on a child.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an automatic criminal appeal to the High Court of South Africa, Free State Division, Bloemfontein, arising from a conviction and sentence imposed by the Regional Court sitting at Heilbron. The appeal was heard by Loubser J and Mthimunye AJ.


The parties were B.P.K (the appellant/accused in the trial court) and the State (the respondent). The appellant had been convicted of rape of a 12-year-old complainant and sentenced to life imprisonment under the minimum sentencing regime.


The Regional Court convicted the appellant on 14 October 2015 and sentenced him on 9 March 2016 to life imprisonment in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997, having found no substantial and compelling circumstances to deviate. The appellant appealed against both conviction and sentence. Although the appellant’s right of appeal was automatic due to the life sentence, the appeal was only heard on 8 August 2022, with judgment delivered on 25 August 2022.


The dispute concerned whether the evidence established rape (penetration) beyond reasonable doubt, the effect of the trial court’s treatment of the medical evidence, and whether a lesser competent verdict was warranted. The appeal also implicated the appropriateness of the original life sentence in light of any substituted conviction.


2. Material Facts


The complainant was a 12-year-old girl at the time of the incident. It was common cause that she lived in the same house as her father and brother, and that the appellant (her father’s brother) also lived there and owned the house.


On the night of 12 December 2014, the complainant’s father became ill and an ambulance was called to take him to hospital. The complainant’s version was that, after the ambulance left at about 22h00, the appellant entered her room, undressed, got into bed with her, undressed her, and inserted his penis into her vagina, moving up and down. She testified that she could not initially identify the perpetrator due to darkness, but later identified the appellant when outside light enabled her to see his face while he urinated in a bucket in the room. She reported the incident to her father the next morning after he returned from hospital.


After the report, the complainant was taken to the police station and hospital, where she was examined by a doctor and a J88 medico-legal form was completed. The J88 reflected no injuries to the complainant’s private parts, while also recording that the absence of injuries did not exclude vaginal penetration. Exhibits were collected for forensic analysis; the forensic laboratory later reported that “presumable semen could not be detected on the exhibits.”


The appellant’s defence at trial was a complete denial of any sexual activity with the complainant. A factual dispute arose about his whereabouts at the relevant time. The appellant testified that he had accompanied the complainant’s father in the ambulance and only returned home much later, whereas the complainant’s father testified that the appellant did not accompany him and that the appellant remained at home.


After conviction but before sentencing, a Victim Impact Report was provided to the trial court. In that report (based on consultations with the complainant), the complainant described conduct that placed the appellant’s penis between her thighs next to her vagina and referred to wiping on her thighs. The report further recorded the complainant stating she wanted the accused punished because if he had penetrated her she would have contracted TB(HIV). The appeal court treated this report as material to assessing whether penetration had been proved beyond reasonable doubt.


3. Legal Issues


The central legal questions were whether the evidence proved rape (including penetration) beyond reasonable doubt, and whether the trial court’s approach to the medical evidence constituted a material misdirection justifying appellate interference with the conviction.


Closely related to this was the question whether, if rape was not proved, the evidence proved a competent verdict of sexual assault as contemplated in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, read with the competent-verdict provision in section 261(1)(c) of the Criminal Procedure Act 51 of 1977.


The issues were principally concerned with the application of law to facts and the evaluation of whether the State had discharged the burden of proof on an essential element of rape, namely penetration, particularly in light of (i) the absence of genital injuries, (ii) the negative forensic result regarding semen, and (iii) the content of the later Victim Impact Report that appeared to diverge from the trial testimony.


A further issue concerned sentence: if the conviction was altered, what sentence was appropriate for the substituted offence, and whether it should be backdated or otherwise adjusted given the procedural posture.


4. Court’s Reasoning


The appeal court first highlighted the inordinate delay between sentence (March 2016) and the hearing of the appeal (August 2022), noting that such delay does not serve the interests of justice and may prejudice an appellant with reasonable prospects of success. While this observation did not itself determine the merits, it formed part of the court’s contextual assessment of the administration of justice in the case.


On the merits, the court examined the trial record and focused on the trial magistrate’s treatment of the medical evidence. The trial magistrate had described the complainant as an excellent witness and expressly acknowledged the caution required because she was a young single witness. However, the appeal court found that the trial magistrate repeatedly referred to “injuries” on the complainant’s private parts as recorded in the J88, and treated those supposed injuries as corroboration that she had been raped. The appeal court held that this was factually incorrect, because the J88 in fact recorded no injuries to the private parts.


The court considered this misconception significant because it appeared to have played a “major part” in the trial magistrate’s acceptance of the rape allegation. The appeal court reasoned that, had the magistrate not laboured under this mistaken belief and had due weight been given to the fact that no presumable semen was detected on the exhibits, the conclusion on rape might have been different. In substance, the appeal court treated this as a material misdirection affecting the reliability of the trial court’s reasoning process on whether penetration had been proved.


The appeal court also regarded the contents of the Victim Impact Report as raising additional doubt about penetration. Although the report was obtained only after conviction, the appeal court considered that “justice demands” that it take notice of what the complainant had told the probation officer and deal with that later version. The report’s description of the appellant placing his penis between the complainant’s thighs next to her vagina, and the complainant’s statement framed hypothetically (“if he had penetrated her”), were treated as casting a “shadow” over the trial version asserting penetration.


In dealing with the State’s submission that the court should then convict of attempted rape, the appeal court rejected that approach on the basis that there was no evidence that the appellant attempted penetration but was for some reason unable to complete it. The court nevertheless accepted that the evidential material supported that some sexual conduct occurred between the appellant and the complainant on the night in question.


The appeal court then turned to the statutory framework for a competent verdict. It applied section 261(1)(c) of the Criminal Procedure Act 51 of 1977, which permits a conviction for sexual assault where the evidence does not prove rape (or an attempt) but proves sexual assault as contemplated in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. The court set out that sexual assault involves unlawful and intentional sexual violation without consent, and noted the statutory definition of sexual violation in section 1 of that Act, which includes direct or indirect contact between the genital organs of one person and any part of another’s body.


Applying those provisions, the court held that because there was reasonable doubt about penetration, the rape conviction could not stand. At the same time, the court concluded that the evidence and information before it established sexual assault of a child aged 12, and it substituted the conviction accordingly.


On sentence, the court emphasised the seriousness of sexual assault, particularly against a young child, and held that a term of direct imprisonment was warranted. It accepted the State’s submission that a sentence of at least 10 years’ imprisonment would be appropriate if rape was not proved and a lesser offence substituted. It therefore replaced the life sentence with 10 years’ direct imprisonment, deemed to have commenced on the original sentencing date.


5. Outcome and Relief


The appeal was upheld. The conviction for rape was set aside and replaced with a conviction for sexual assault in terms of section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.


The sentence of life imprisonment imposed on 9 March 2016 was set aside and replaced with 10 years’ direct imprisonment, deemed to have commenced on 9 March 2016.


The remaining orders made by the trial court on 9 March 2016, relating to the possession of a firearm and the Register of Sexual Offences, were confirmed. No separate costs order was made, consistent with criminal appeal practice.


Cases Cited


No cases were cited in the judgment.


Legislation Cited


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


Criminal Procedure Act 51 of 1977, section 261(1)(c)


Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, sections 1 and 5


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the rape conviction could not stand because there was reasonable doubt that penetration had been proved, particularly in light of the absence of genital injuries on the J88, the forensic result indicating that presumable semen could not be detected, and the later Victim Impact Report suggesting non-penetrative conduct.


The court held further that the evidential material supported a conviction of sexual assault, which is a competent verdict on a rape charge under section 261(1)(c) of the Criminal Procedure Act 51 of 1977, read with sections 1 and 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007.


The court substituted the original sentence of life imprisonment with 10 years’ direct imprisonment, backdated to the original sentencing date, and confirmed the trial court’s ancillary orders relating to firearm possession and the Register of Sexual Offences.


LEGAL PRINCIPLES


A conviction for rape requires proof beyond reasonable doubt of the elements of the offence, including penetration. Where penetration is not proved beyond reasonable doubt, a conviction for rape cannot be sustained.


A trial court’s material factual misdirection, particularly regarding purported corroboration from medical evidence, may justify appellate interference with both conviction and sentence. Where the trial court mistakenly treats medical documentation as confirming injuries when it does not, and relies on that misconception in assessing credibility and proof, the integrity of the conviction may be undermined.


Under section 261(1)(c) of the Criminal Procedure Act 51 of 1977, if the evidence on a rape charge does not prove rape (or attempted rape) but does prove sexual assault as defined in the sexual offences legislation, a court may convict of that competent verdict.


Sexual assault in section 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007 consists of unlawful and intentional sexual violation without consent, and “sexual violation” (as defined in section 1) includes direct or indirect contact between the genital organs of one person and any part of another person’s body.


Where a rape conviction is replaced with sexual assault, sentencing must reflect the seriousness of the substituted offence, including aggravation where the complainant is a young child, and may properly include a substantial term of direct imprisonment.

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[2022] ZAFSHC 203
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B.P.K v S (A28/2022) [2022] ZAFSHC 203 (25 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: A28/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
B[....]
P[....] K[....]
Appellant
and
THE
STATE
Respondent
HEARD
ON:
8
August 2022
CORAM:
LOUBSER,
J et MTHIMUNYE, AJ
JUDGEMENT
BY
:
LOUBSER,
J
DELIVERED
ON:
25
AUGUST 2022
[1]
The Appellant in this appeal is a 39 years old male who was found
guilty of raping
a 12 years old girl in the Regional Court sitting at
Heilbron on 14 October 2015.  On 9 March 2016 the Appellant was
sentenced
to life imprisonment in terms of the provisions of
Section
51
(1) of the
Criminal Law Amendment Act 105 of 1997
. In sentencing
the Appellant, the trial Magistrate found that there were no
substantial and compelling circumstances justifying
a deviation from
the minimum sentence prescribed by the said Act. The fact that the
Appellant admitted during the course of the
trial that he knew that
he was HIV positive at the time of the alleged crime, was taken into
account by the trial Magistrate when
he came to his finding.
[2]
The Appellant now appeals against both his conviction and the
sentence imposed. He
enjoys an automatic right of appeal because of
the sentence of life imprisonment. Notwithstanding, it will be noted
that it took
more than 6 years since the sentencing of the Appellant
before this Court was placed in a position to hear the appeal. This
inordinate
delay is a matter of grave concern to this Court, because
it does not serve the interests of justice. It speaks for itself that

an Appellant who has reasonable prospects of success on appeal, may
be severely prejudiced by such a long delay in the appeal
proceedings. The time has come for courts to establish the identity
of the person or persons who were responsible for such delays,
and to
hold them accountable for their breach of duty. In the present
instance, it appears from the papers before us that Legal
Aid South
Africa received instructions from the Appellant in October 2017 to
assist in his appeal. During the same month a request
was made for a
transcript of the trial proceedings, which transcript was not yet
available by the time the Notice of Appeal was
filed on 13 August
2018. It is not clear what caused the further delay of some 4 years
before the appeal could be set down for
hearing before this Court.
Those responsible for this delay, whoever they may be, should take
note that they may be held accountable
by the courts, should it ever
happened again in future.
[3]
I now turn to the evidence that was presented in the trial Court, as
it appears from
the transcribed record of proceedings. The
complainant chose to testify in open court and not with the
assistance of an intermediary,
despite her tender age at the time.
She testified after the Appellant had pleaded not guilty to the
charge of rape. He was legally
represented by an attorney of Legal
Aid South Africa, who explained during the plea proceedings that the
Appellant and complainant
were living in the same house, but that
they had never engaged in any sexual activity with each other. The
plea of the Appellant
therefore consisted of a total denial of the
alleged rape.
[4]
The complainant testified that she, her father, the Appellant and her
brother aged
7 lived in the same house. The Appellant was her
father’s brother, and he was the owner of the house. She
testified that
the Appellant did not want her father and his two
children to live in his house, and he had asked her father on more
than one occasion
to take his children and leave, but her father
refused. When they later testified, both the Appellant and her father
denied these
allegations by the complainant.
[5]
On the night of 12 December 2014, she was sleeping alone in her room
on a double bed,
the complainant testified. In the early evening her
father became ill, and the Appellant called an ambulance to take her
father
to the hospital. Soon after the ambulance left with her father
about 10 pm that evening, the Appellant entered her room, undressed

himself and climbed into the bed with her. Her brother was sleeping
in another room. The Appellant then undressed her, got on top
of her
and inserted his penis into her vagina, she testified. He made up and
down movements on top of her, and when he was finished,
he stood up
and wiped himself and herself clean with a bandage. Up to that point
she could not identify the Appellant, because
it was too dark in the
room. When his penis was inside her, she cried and screamed, but
nobody came. She does not know whether
he ejaculated. After he was
done with the wiping, she identified the Appellant when he went on to
urinate in a bucket in the room.
She could then clearly see his face,
since the light of a mass light outside was shining into the room. He
thereafter left the
room, she told the Court.
[6]
At about 7 am the following morning her father returned from the
hospital. She reported
the incident to him. Her father then
confronted the Appellant, who denied everything. She was then taken
to the police station
and the hospital where a medical doctor
examined her. The doctor completed a form J88 which was handed in.
The J88 indicated that
the complainant had no injuries, but that the
absence of injuries to the private parts did not exclude vaginal
penetration. Unknown
exhibits were also collected from the
complainant at the hospital and forwarded to the forensic laboratory
in Pretoria. The laboratory
later informed that “presumable
semen could not be detected on the exhibits”.
[7]
The Appellant also gave testimony in the trial Court, and he denied
the evidence of
the complainant. In particular, he denied that he
could have entered the complainant’s room soon after the
ambulance had
left with her father. He testified that he had
accompanied her father in the ambulance to the hospital, and that he
had only returned
to the house much later that night. When the
complainant’s father testified, he denied that he was
accompanied by the Appellant
in the ambulance. The Appellant stayed
at home when the ambulance took him to the hospital, he testified.
[8]
In his judgement, the trial Magistrate described the complainant as
one of the best
witnesses that the Court had heard in a very long
period of time. The Magistrate also made it clear that he was mindful
of the
fact that the complainant was a single witness and that she
was a young child. He confirmed that her evidence should therefore be

approached with the necessary caution. He then went on to refer no
less than four times to the “injuries found on the private

parts” of the complainant, as it appear on the form J88. In
this respect, the trial Magistrate was patently wrong. As mentioned

earlier, the form J88 showed clearly that no injuries to the private
parts could be found.
[9]
Furthermore, it is clear that this misconception played a major part
in the Magistrate
finding that the complainant was indeed raped by
the Appellant. For instance, the Magistrate had the following to say
in this respect:
“The J88 confirms that she sustained injuries
to her private parts and that she was probably raped.” And:
“The
confirmation of the injuries weighs more heavily and is
her evidence absolutely credible to the Court.” Had the trial
Magistrate
not laboured under this misconception, and had he been
mindful of the fact that no semen could be found on the exhibits, his
finding
that the complainant was raped might have been different.
[10]
There is also another factor that causes some measure of concern as
far as the conviction is
concerned. After convicting the Appellant on
the charge of rape, but before sentencing, a Victim Impact Report
prepared by a probation
officer of the Department of Social
Development, was made available to the trial Court. In this report,
the following is said after
consultations with the complainant: “The
victim mentioned that the accused then removed her underwear and lied
down on top
of her as she was facing upwards, the accused placed his
penis between the victim’s thighs, next to the victim’s
vagina
and did the up and down movement. The victim stated that the
accused then climbed off and took one of the victim’s father’s

bandages and wiped his penis then used it to wipe the victim on her
thighs.”
[11]
Further on in the report the following is indicated: The victim …
mentioned that she is
currently doing well but would like the accused
to be punished because if he had penetrated her, she would have
contracted TB(HIV)
…
[12]
In his judgement on sentence, the trial Magistrate mentioned that he
was taking the whole of
the impact report into consideration. Yet he
did not refer to the passages quoted above. While it is true that he
was only furnished
with this report after he had convicted the
Appellant, I am of the view that justice demands that this Court of
appeal should take
due notice of what the complainant had told the
probation officer, and that it should deal with this new version
accordingly. This
new version no doubt casts a shadow over the
initial version of the complainant to the effect that penetration had
taken place
and that she was therefore raped. We canvassed this issue
with Mrs. Bester at the hearing of the appeal, where she represented
the Respondent. She submitted that, should this Court take the new
version into consideration, then the Court should find that the

Appellant has made himself guilty of attempted rape.
[13]
I do not agree with Mrs. Bester since there is no evidence or
information before us that the
Appellant had attempted to penetrate
the complainant, but that he was for some reason unable to do so.
However, I do agree with
her that there is sufficient evidence to the
effect that something has happened between the Appellant and the
complainant on the
night in question there on her bed where she was
sleeping. As for the conviction on the count of rape, it is not only
the abovementioned
new version that raises some doubt. The trial
Magistrate could have doubted the initial version placed before him
purely on the
basis of the absence of semen on the exhibits and the
absence of injuries to the private parts of the complainant. What is
clear
to this Court, having regard to all circumstances of the
appeal, is that a measure of interference in the final outcome of the
matter, is warranted.
[14]
Section 261(1)(c)
of the
Criminal Procedure Act 51 of 1977
provides
that if the evidence on a charge of rape does not prove any such
offence or an attempt to commit such offence, but the
offence of
sexual assault as contemplated in
Section 5
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act of 2007
, the
accused may be found guilty of the offence so proved. The said
Section 5
provides that a person who unlawfully and intentionally
sexually violates a complainant without her consent, is guilty of the
offence
of sexual assault. Sexual violation is defined in
Section 1
of the abovementioned 2007 Act as any act which causes direct or
indirect contact between the genital organs of one person and
any
part of the body of another person.
[15]
Since there is a reasonable doubt that penetration had taken place in
this matter, the conviction
on the charge of rape stands to be set
aside. At the same time, we are of the view that the Appellant had
made himself guilty of
the offence of sexual assault on a child aged
12 years. We come to this conclusion on the basis of the evidence and
information
before us, and on the basis of the statutory provisions
referred to in the preceding paragraph.
[16]
The offence of sexual assault is a very serious offence, and more so
where the victim is a young
child. In the present case, a term of
direct imprisonment is called for. Mrs. Bester submitted on behalf of
the State that imprisonment
for at least 10 years would be an
appropriate sentence should this Court set aside the conviction on
rape and substitute it with
a conviction on a less serious offence. I
fully agree with this submission. In the premises, the following
orders are made:
1.
The appeal succeeds,
and the Appellant’s conviction on the charge of Rape is set
aside.
2.
The Appellant is found
guilty of Sexual Assault as contemplated in Section 5 of the Criminal
Law (Sexual Offences and Related Matters)
Amendment Act of 2007.
3.
The sentence of Life
Imprisonment imposed on the Appellant on 9 March 2016 is set aside
and substituted with a sentence of 10 years
direct imprisonment, the
running of which is deemed to have commenced on 9 March 2016.
4.
The remaining orders of
the trial Court made on 9 March 2016 in respect of the possession of
a fire-arm and the Register of Sexual
Offences are confirmed.
P.
J. LOUBSER, J
I
concur:
D.
P. MTHIMUNYE, AJ
For
the Appellant:
Mrs.

V. Abrahams
Instructed
by:

Legal Aid
SA, Bloemfontein
For
the Respondent:

Adv. A. Bester
Instructed
by:

The
Director of Public Prosecutions, Bloemfontein

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