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[2022] ZAFSHC 281
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Makhubu v S [2022] ZAFSHC 281 (6 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A40/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrate: YES/NO
In
the matter between:
KHULU
JACOB
MAKHUBU
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
ZYL,
Jet
MPAMA, AJ
HEARD
ON:
25
JULY 2022
DELIVERED
ON:
6
OCTOBER
2022
JUDGMENT
BY
:
MPAMA,
AJ
[1]
The appellant was arraigned in the Regional Court sitting in Vrede,
on
a charge of rape, read with the provisions of section 51(1) of Act
105/1997. He pleaded not guilty, however, he was convicted on
16
March 2010 and sentenced to life imprisonment.
[2]
In view of the appellant's life imprisonment , the appeal is before
us
on the basis of section 10 of the Judicial Matters Amendment Act
42/2013, in terms of which the appellant has an automatic right
to
appeal his conviction and sentence.
[3]
The appellant's appeal is premised
inter
alia,
on the following grounds :
AD
CONVICTION
1.
That the learned magistrate erred in accepting the evidence tendered
by the state witnesses thereby rejecting the appellant's evidence as
not being reasonable possible true.
2.
That the learned magistrate erred in not correctly applying the
cautionary
rule on the evidence of a child witness. The child did not
sleep at home and did not tell the truth about her whereabouts to her
mother.
AD
SENTENCE
(i)
That·an effective term of life imprisonment is strikingly
inappropriate in that it is out of proportion to the totality
of the
accepted facts in mitigation. In effect, it disregards the period of
time that the appellant spent in custody awaiting trial.
[4]
The facts can be succinctly summarized as follows: On 26 October 2007
the complainant, Ms TN, nine years old at the time, was playing next
to the school gate during break time. It was about 11HOO. A
tall man,
clad in a long black jacket approached her. The man requested her to
go and buy a cigarette at a tuckshop. I deem it
necessary to indicate
at this stage already, that during cross-examination of the
complainant, when she was questioned about the
colours "black"
and "brown" by being referred to certain items in court she
corrected herself by testifying
that the jacket which the man was
wearing, was actually brown.
[5]
The complainant has often seen the man before that day. He had also
on
a previous occasion made a similar request to her and during that
occasion, she acceded to his request. She consequently again acceded
to his request this time. On her return, she found the man still
standing next to the school gate and gave him the cigarette. The
man
grabbed and dragged her to a certain backroom not far from the
school, where he lived. Whilst he was dragging her, she cried
loudly,
but nobody saw them, since the other school children played behind
the school. When they got inside, he locked the door.
He took out a
cigarette and started smoking. The complainant continued crying.
[6]
When done smoking he threw her on the bed, undressed her and himself
and
sexually penetrated her vaginally with his penis. He took a white
cloth and wiped her vagina when done penetrating her. He
gave
her R1 and told her not to tell
anyone about what had just happened or else he will kill her. He
instructed her to leave and she
proceeded home. It was about 13H00
when she proceeded home.
[7]
When she arrived at home, she found her mother who enquired from her
about
why she returned late from school. She was scared to report to
her mother what happened to her. Instead, she lied and reported that
she was coming from her grandmother's place. Her mother gave her a
hiding and told her to tell the truth. She made a report to
her
mother about what happened. The complainant and her mother went to
the police. At a later stage, the complainant drove with
the
investigating officer and pointed the place where she was raped out
to him. After the appellant was arrested, the complainant
identified
him at the police station as the man who raped her. The police also
took the complainant to the hospital in Frankfort
for a medical
examination.
[8]
The complainant's mother testified that the complainant did not sleep
at home the night of 25 October 2007. On 26 October, she made
enquiries at her grandmother's place and they informed her that she
was not there. She went to look for her at school and found her clad
in a filthy school uniform. She asked her where did she sleep
and her
response was that she slept at her grandmother's place. She left the
complainant at school and proceeded home.
[9]
The complainant came back from school at about 14H00. Once again, she
asked her where she slept. The complainant said at her granny's
place. She told her that she went to her granny's place, but that
she
was not there. She scared her by saying she will call the police if
she is not telling the truth. The complainant reported
that a man
called Khulu previously called her during the school break to go and
buy cigarettes. On the day of the incident it happened
again and when
she returned from the shop after she bought the cigarettes, he took
her into his place and closed the door. He put
her on the bed,
undressed her and himself and climbed on top of her. When he was
finished, he gave her R1.00 and told her not to
report this to
anyone.
[10]
Inspector Sethunya January Tsotetsi is a member of SAPS. He is the
investigating officer.
He handled the rape complaint and interviewed
the complainant. The complainant informed him about a tall man, with
a slim body
and wearing a long brown jacket. She reported that the
man lives close to the school, that he had on previous occasions
called
her during school break and sent her to go and buy cigarettes
for him. On the day of the incident, he again requested her to do
so
and when she returned from the shop, he took her to where he lives.
She explained that there was a blue house with backrooms.
The man
took her to a two-roamed backroom. She explained further that they
entered the first room via a door and that there were
three-legged
pots inside the room next to the door. The said room was partitioned
with a curtain, which led to a bedroom where
she was raped. There was
a bed and a washing basin. The complainant further reported that when
he was done raping her he took a
white cloth and wiped her female
private part. Inspector Tsotetsi drove to this house. The complainant
pointed the house out to
the witness. He called another police
vehicle and they took the complainant to the police station. He went
inside the main house,
but did not find the appellant. He found the
appellant's cousin who called the appellant on his phone.
[11]
The appellant arrived and together they proceeded to the backroom. He
found that the inside
of the backroom fitted the description given by
the complainant; inside it had the three-legged pots next to the
door, the curtain
to the backroom partitioning the bedroom, the bed
and the washing basin. With the appellant's permission, he searched
the house
and under the bed he found a long brown jacket in a box and
a white cloth. He sealed the cloth in a bag, stored it until it was
sent away for forensic tests.
[12]
The J88- Medico Legal Report pertaining to the complainant was handed
in as Exhibit "A"
and the contents were formally admitted
in terms of section 220 of Act 51/1977. The examination was performed
at Mafube Hospital,
Frankfort, on 26 October 2007 at 18h30. With
regard to the gynaecological examination, it was recorded that the
hymen was
"broken and fresh".
The doctor was unable to do a full
internal vaginal examination because it was too painful for the
complainant. The doctor concluded
as follows in the said report:
"...
the fact that hymen is broken and fresh suggestive that penetration
did take place."
[13]
An affidavit in terms of section 212 of Act 51/1977 pertaining to DNA
analysis was handed
in as Exhibit "B" and a letter in
addition thereto was handed in as Exhibit "C". The contents
and correctness
thereof were formally admitted in terms of section
220 of Act 51/1977. The following is evident from the said documents:
(i)
The DNA of the appellant was found on the white cloth that was found
in the bedroom
of the appellant.
(ii)
Only a male DNA profile was obtained from the said cloth.
[14]
During the cross-examination of Inspector Tsotetsj it was put to him
that what was found
on the white cloth during the DNA analysis was
the appellant's saliva and not his semen. Inspector Tsotetsi
responded that since
he is not an expert in the relevant field, he is
not in a position to respond thereto. The State consequently
requested a further
report regarding the DNA analysis, which was
subsequently obtained in the form of an affidavit in terms of section
212 of Act 51/1977.
It was handed in as Exhibit "E". The
said exhibit contains an explanation of the chemical process that is
followed to
test for the presence of semen. From Exhibit "E"
it is further evident that the previously mentioned test was carried
out on the white cloth and in conjunction with the fact that a DNA
profile was in fact obtained from the white cloth, it was concluded
that it was most probably the appellant's semen that was on the
cloth.
[15]
This concluded the State's case.
[16]
The appellant's version as put to the witnesses and testified on by
him is as follows:
He did not meet the complainant on that day and
never raped her. He admitted that he was staying in the backroom
visited by the
police. The night before his arrest he was at work
where he was employed as a security guard. He returned in the
morning. When
at home he started vomiting, took a white cloth and
wiped his mouth. After a while, he took some money and went to buy
electricity.
His cousin Popi was there with him but in the main
house. However, as he was leaving to buy electricity he reported to
her that
he was leaving.
[17]
He went to his friend's place, Simphiwe Mahlaba and together they
proceeded to town, Cornelia.
They ran his errands and at about 12h00
they went back to his place. He loaded electricity and proceeded with
his friend to his
place. He remained there until very late when he
received a call from his cousin informing him that the police was
looking for
him. He proceeded to his place. He found the police
waiting in the main house and on arrival he proceeded to the backroom
with
the police. Inspector Tsotetsi searched his place and found his
long brown jacket and a cloth. Inspector Tsotetsi took the items
and
he was arrested. He does not know the complainant and she was not
present at the time of his arrest. He denied that his semen
was found
on the cloth.
[18]
It is trite that a court of appeal will be hesitant to interfere with
the factual findings
and evaluation of the evidence by a trial court.
See
R
v
DHLUMAYO
AND ANO
1948 (2) SA 677
(A)
at 705.
[19]
The appeal court is not at liberty to depart from the trial court's
findings of fact and
credibility. It will only interfere with the
court a quo's findings if there
are
material misdirections and erroneous findings. See
S v FRANCIS
1991
(1} SACR 198
(A}
at 204 C- E.
See also
MAKATE
v
VODACOM
LTD
2016
(4}
SA 121
(CC}
at paras [37] - [41].
[20]
The issue to be decided is whether the trial court was correct in
accepting the version
of the State and rejecting that of the
appellant. The question is whether the appellant's version is
reasonably possible true.
[21]
The trial court dealt with the evidence of a single child witness. It
is the appellant's
contention that the court
a
quo
failed to apply the cautionary
rules that apply to the evidence of a single child witness as the
complainant was not a satisfactory
witness and she lied about her
whereabouts on the night of the 26th October 2007.
[22]
Section 208 of the Criminal Procedure Act 51/1977 provides that a
court can convict an
accused on the evidence of a single witness.
[23]
In
S v SAULS 1981 (3) SA172 (A)
at 180 D-F the following was held with reference to section 208:
"The
absence of the word ·credible' is of no significance; the
single witness must still be credible, but there are,
as
Wigmore
points out 'indefinite degrees in this character we call
credibility'. (Wigmore on Evidence vol 111 para 2034 at 262.) There
is
no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see the
remarks
of RUMPFF JA in S
v Webber
1971 (3) SA 754
(A) at
758). The trial Judge will weigh his evidence; will consider its
merits and demerits and, having done so, will decide whether
it is
trustworthy and whether, despite the fact that there are
shortcomings, contradictions and defects in the testimony, he is
satisfied that the truth has been told."
[24]
The Supreme Court of Appeal further determined in
S
v MAHLANGU
2011
(2) SACR 164
(SCA}
at para [21]
that a finding can be based on the evidence of a single as long as
such evidence is
"substantially
satisfactory in every material respect, or if there is
corroboration".
[25]
A cautionary approach is also to be followed when evaluating the
evidence of a child witness.
See
WOJI
v SANTAM INSURANCE CO LTD 1981 (1)
SA 1020 (A)
at 1028 B- D. In
S
v
V 2000 (1) SA SACR 453 (SCA)
at para [2] the Supreme Court of Appeal stated as follows in this
regard:
"...
it is well to remind oneself at the outset that, whilst there is no
statutory requirement that a child's evidence must
be corroborated,
it has long been accepted that the evidence of young children should
be treated with caution..."
[26]
The trial court was alive to the aforesaid cautionary rules and it
found the evidence of
the complainant reliable and trustworthy. The
record shows that the complainant's testimony, her being a child and
a single witness,
was considered with the caution required by the
magistrate.
[27]
The complainant's evidence is corroborated by a host of other
evidence: Inspector Tsotetsi
found the appellant's backroom in the
same condition as described by the complainant. Her evidence was that
the rapist was wearing
a long brown coat and the police found such
coat at the appellant's place. A white cloth as indicated by the
complainant was recovered
at the appellant's place. This is not the
end as this cloth was sent away for forensic tests and the results
show that the appellant's
sperm was recovered from this cloth.
[28]
It was argued before us that if the complainant's version that she
was wiped with the cloth
was true, her DNA would have been deposited
on this cloth. There are a number of reasons that can be suggested
for the absence
of the complainant's DNA on this cloth, however I
choose not to speculate. The fact remains that the discovery of this
cloth with
the appellant's sperm corroborates the complainant's
version that after the rape a white cloth was used to wipe her
vagina. The
forensic results are at odds with the appellant's version
that what was contained on this cloth was saliva as he used this
cloth
to wipe his mouth when he vomited on the day in question.
[29]
In addition to the aforementioned, and very importantly, the presence
of the appellant's
sperm corroborates the version of the complainant
regarding the identity of the appellant as the man who raped her.
Furthermore,
the complainant could not have known about the
appellant's brown jacket, the interior appearance of the appellant's
backroom and
the existence of the white cloth if she had not been in
contact with the appellant and in his backroom on that day.
[30]
The contents of the J88 and the conclusion recorded therein by the
doctor serve as further
corroboration of the complainant's version
that she had been raped.
[31]
It is correct that the complainant contradicted her mother's evidence
regarding her whereabouts
on the night of 25 October 2007. She
admitted that she lied to her mother when she was asked about her
whereabouts because she
feared that her mother would give her a
hiding if she were to tell the truth. I need to mention that the
evidence of the complainant
and her mother appears to be a bit
confusing pertaining to whether the sleeping-over at the house of the
grandmother occurred on
the night of 25 October 2007 or 26 October
2007. However, it could not have been the night of 26 October 2007,
since the rape had
already occurred by that time considering that the
medical examination of the complainant was performed on 26 October
2007 at 18h30.
[32]
However, the aforementioned contradictions were not of such a
material nature to have made
a negative finding regarding the
complainant's credibility and to have her evidence rejected as being
false. See
S v MKHOHLE
1990 (1) SACR
95
(-A)
at 98 F-G. See also
HAL
obo
MEC
FOR
HEALTH, FREE STATE
2022 (3) SA
571
(SCA)
at para [92].
Therefore, I cannot find any misdirection on the part of the trial
court in this regard. It was correct to find that
despite any
shortcomings in the complainant's evidence the truth has been told.
[33]
The appellant denied that he had any contact with the complainant on
the day of the incident
and consequently denied that he raped her. In
fact, according to him he did not know the complainant at all and saw
her for the
first time in court. The court a
quo
rejected this version as not being
reasonably possible true.
[34]
The appellant contradicted his own version on material issues. It was
put to the witnesses
that the appellant does not have a brown jacket;
however, he admitted in his testimony that he has such jacket and the
police found
it at his place. He testified that on the white cloth
there was saliva as he used it to wipe his mouth after vomiting. Such
explanation
flies against the findings in the forensic report showing
that his semen was found on this cloth.
[35]
His version is that Inspector Tsotetsi gave the complainant the
description of his backroom.
This cannot be true. Inspector Tsotetsi
testified that the complainant gave this description before he
visited appellant's place
and the complainant was not present when
they entered the backroom. The appellant's evidence, therefore does
not explain how the
complainant knew about the interior appearance of
the backroom, the cloth and the jacket. The only reasonable
explanation is that
the complainant was at the appellant's place,
where she was raped.
[36]
The trial court was therefore correct to reject the appellant's
version as being inherently
improbable and not reasonably possibly
true. Its finding that the State proved the guilt of the accused
beyond reasonable doubt
is correct and cannot be faulted.
[37]
The appellant also appeals against his sentence of life imprisonment.
He was convicted
of rape read with the provisions of
section 51(1)
of
the
Criminal Law Amendment Act, 105 of 1997
. The prescribed minimum
sentence is one of life imprisonment.
[38]
It is so that the court is allowed to deviate from this sentence if
it is satisfied that
there are substantial and compelling
circumstances warranting deviation. It has been said in
S
V MALGAS
2001 (1) SACR 469
{SCA)
that the specified sentences are not to be departed from lightly and
for flimsy reasons. The test for deviation is whether on
consideration of the circumstances of the particular case the court
is satisfied that they render the prescribed sentence unjust
in that
it would be disproportionate to the crime.the criminal and the needs
of the society, so that an injustice would be done
by imposing that
sentence.
[39]
An appeal court can interfere with sentence only where the sentence
is affected by an irregularity
or misdirection and the sentence
imposed is so inappropriate that it induces a sense of shock.
[40]
In
S
V
RABIE
1975
(4) SA 855
(A)
at 857 D- E it was stated that punishment is pre-eminently a matter
for the discretion of the trial court, the sentence should
be altered
only if the trial court's discretion has not been judicially and
properly exercised. The test is whether the sentence
is vitiated by
an irregularity or misdirection or is disturbingly inappropriate.
[41]
The record indicates that the appellant's personal circumstances were
taken into consideration
by the court a quo. The following personal
circumstances of the appellant were considered; that he was 44 years
old at the time
of sentencing, a first time offender and a father to
a 23-year old child. The appellant though granted bail spent some
time in
custody before the finalisation of the matter.
[42]
The victim was a nine-year-old child at the time of the offence. The
appellant dragged
a uniformed child from school to his place. Having
done all that, he displayed flagrant disregard for the complainant's
emotions;
he stood there smoking a cigarette before raping her. I
cannot imagine what went through the complainant's mind whilst he was
still
smoking.
[43]
It was argued on behalf of the appellant that he spent some period in
custody awaiting
trial. The record shows that the appellant was
arrested on 26 October 2007 and released on bail on 11 February 2008.
His bail was
cancelled on 16 March 2010, the day of his conviction.
The appellant was sentenced on 9 July 2010. Therefore, the time spent
in
custody awaiting trial is relatively short. Even if this was not
the case, such time period cannot in isolation constitute substantial
and compelling circumstances warranting deviation from the prescribed
sentence.
[44]
It is also evident from the record that the seriousness of the
offence as well as the interests
of the community were considered by
the trial court. The offence of rape is described in
S
v
CHAPMAN
[1997] ZASCA 45
;
1997
(3)
SA 341
(SCA)
at 344 J as a 'humiliating, degrading, and brutal invasion of the
privacy, the dignity and the person of the victim'.
[45]
In
DIRECTOR
OF
PUBLIC
PROSECUTIONS,
WESTERN
CAPE
v
PRINS AND OTHERS
2012 (2)
SACR
183
(SCA)
the following was said at para [1]:
"No
judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way
in which it
deprives so many women and children of their right to dignity and
bodily integrity, and in the case of children, the
right to be
children."
[46]
A social worker, employed as a probation officer by the Department of
Social Welfare, testified
in aggravation of sentence on how the
incident affected the complainant. From the social worker's evidence
and the victim impact
report that she prepared it is evident that the
complainant has become aggressive and stubborn since the incident.
According to
the parents of the complainant they feel as though
"they
have
lost their
child'';
she does not discuss issues with them anymore and she does not listen
to them. She is constantly crying for no apparent reason
and when her
parents ask her about it, she leaves their home, goes and sleeps at
one of her friend's place. The complainant's performance
and progress
at school has also deteriorated since the incident. She is often
absent from school in order to visit friends in town
who are older
than she is and who do not attend school. The complainant did receive
counselling, but the social worker recommended
further and continued
counselling. She was interviewed almost three years after the
incident by the social worker; however, she
was crying and very
emotional throughout the interview. This is a reflection of the long-
lasting devastating effects and the emotional
trauma the incident has
had on the complainant's wellbeing.
[47]
The aggravating circumstances in this matter far outweigh the
appellant's personal circumstances.
I am therefore unable to find
that the trial court erred in finding that there were no substantial
and compelling circumstances
that warrant any other punishment than
life imprisonment. The sentence imposed by the court a
quo
is not shockingly inappropriate. The
sentence that was imposed by the trial court fits the appellant, the
crime and serves the legitimate
interests of the society.
[48]
In my view the appeal against sentence must consequently fail.
[49]
In the premises, I would make the following order:
1.
The appeal against the conviction and sentence is dismissed.
L.MPAMA,
AJ
I
agree and it is so
ordered:
C.
VAN ZYL, J
On
behalf
of
the
appellant:
Mrs
L. Smith
Instructed
by: Legal
Aid South Africa
Bloemfontein
On
behalf of the respondent: Adv.
B.G. Claassens
Instructed
by: Office
of the DPP
Bloemfontein