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[2022] ZAFSHC 297
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Malebo v S (A153/2021) [2022] ZAFSHC 297 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Yes
Of Interest to other
Judges Yes
Circulate to
Magistrates: Yes/No
Case
No.:
A153/2021
In
the matter between:
SHADRACK
MALEBO
Appellant
and
THE
STATE
Respondent
CORAM:
C VAN ZYL J et SNELLENBURG, AJ
HEARD:
23 MAY 2022
JUDGMENT
BY:
SNELLENBURG AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 04 November 2022 at
15h00.
[1]
The appellant was charged with 14 counts of which only the following
counts are relevant:
count 1, the contravention of s 3 of the Sexual
Offences and Related Matters Amendment Act 32 of 2007, read with the
provisions
of s 51(1) of Act 105 of 1997, in that he committed an act
of sexual penetration with the complainant who was at the time of the
commission of the offence 10 years old; and counts 10, 11 and 12,
sexual exploitation of children by contravening s 17(1)(b) of
the
Sexual Offences and Related Matters Amendment Act 32 of 2007 by
committing sexual acts with the children mentioned therein
by
engaging their services with their consent for financial or other
reward.
[2]
On 6 February 2019 the Regional Court, Bloemfontein (LBJ Moeng
presiding) convicted
the appellant on counts 1, 10, 11 and 12. The
appellant was sentenced to life imprisonment in terms of the
provisions of s 276(1)
of Act 51 of 1977 on count 1; 15 years
imprisonment in respect of count 10; 15 years imprisonment in respect
of count 11; and 15
years imprisonment in respect of count 12.
[3]
The 14 counts preferred against the appellant all related to
contraventions of different
provisions of the Sexual Offences and
Related Matters Amendment Act 32 of 2007. For sake of completeness
the court
a
quo
concluded that count 13 constituted a duplication of count 1; count 6
constituted a duplication of count 11; count 7 constituted
a
duplication of count 12; and count 5 constituted a duplication of
count 10. The appellant was eventually found not guilty and
discharged on counts
2,
3, 4, 5, 6, 7, 8, 9
,
13 and 14.
[4]
Since a sentence of life imprisonment was imposed on count 1, the
appellant has had
an automatic right of appeal. This appeal gives
effect to that right.
[5]
The appeal is directed against both the conviction on the four counts
as well as the
sentences which the court
a quo
imposed.
[6]
This judgment concerns sexual misconduct with children by the
appellant. The children
are properly identified in the chargesheet
and in the court
a quo’s
judgment. To protect the
identities of the complainants and child witnesses, where relevant,
reference will be made to the different
complainants or witnesses by
using only initials.
[7]
Regarding the conviction, the appellant contends that the court below
erred in (a)
concluding that his guilt was proved beyond a reasonable
doubt; (b) concluding that the state witnesses were credible and
reliable
witnesses; (c) concluding that the contradictions between
the state witnesses were not material, (d) concluding that the
sequence
of events and the dates of the alleged offences were not
material; (e) by rejecting the evidence of the appellant as not being
reasonably possibly true; (f) by rejecting the evidence of the
defence witness as not being reasonably possibly true; and (g) in
concluding that the appellant’s evidence did not rebut the case
of the state.
[8]
For sake of context it is necessary to briefly deal with the
different charges.
8.1 In
respect of counts 1 to 3 the state alleged that the appellant was
guilty of rape in contravention of the
provisions of Section 3, read
with the provisions of Section 51 (1) Schedule 2
Part 1
of the
Criminal Law Amendment Act 105 of 1997
as amended in that the
appellant committed acts of sexual penetration during the period
between 28 December 2016 and 3
January 2017 with the
complainants named therein, being 3 boys respectively aged 10, 12 and
13 by inserting his penis into their
anuses without their consent.
8.2 In
respect of count 4 the state alleged that on 3 January 2017
the accused contravened the provisions
of
Section 55(1)(a)
in that he
attempted to commit an act of sexual penetration with a 10-year-old
boy named in the chargesheet, by instructing him
to undress and to
lie on the ground.
8.3 In
respect of counts 5, 6 and 7 the state alleged that between the
period 28 December 2016 and 3
January 2017 the
accused contravened the provisions of
Section 15(1)
in that he
committed acts of sexual penetration with the children named therein
being respectively boys aged 12, 13 and 15 by penetrating
them anally
without their consent and telling them to have sexual intercourse
with other minor boys.
8.4 In
respect of counts 8 and 9, the state alleged that between 2 and 3
January 2017 the accused contravened
the provisions of
Section 4
in that he compelled the children named therein, being two
10-year-old boys to commit acts of sexual penetration with the
complainant
named therein, a 13-year-old boy without the
complainant's consent.
8.5 In
respect of counts 10, 11, 12, 13 and 14 it is alleged that the
appellant sexually exploited children by
contravening the provisions
of
Section 17(1)
read with Sections
1
,
56
(5),
56
(a),
57,
58, 59, 60
and
61 of the
Criminal Law Amendment Act Sexual
Offences and Related
Matters 32 of 2007 as amended as well as
Section 92(2)
and
94
of the
Criminal Procedure Act 51 of 1977
in that he, during the period 28
December 2016 to 3 January 2017 (during the periods and on the dates
named in the chargesheet),
unlawfully and intentionally engaged the
services of the children mentioned therein, being respectively two
boys aged 10, as well
as a 12, 13 and 15-year-old boy with or without
the said complainants’ consent for financial or other reward,
favour or compensation
to the said complainant or to a third person
to wit, the children named in the chargesheet, by committing a sexual
act with the
said complainants by penetrating them anally and telling
them to penetrate other children.
[9]
The appellant’s representative responsibly and in my view quite
correctly conceded
during argument that the grounds of appeal
regarding both the conviction and the sentence were unmeritorious.
[10]
The respective complainants were all children at the time as appears
from the summary of the
charges. Their ages ranged between 10 and 15
when the offences forming the subject matter of the charges preferred
by the state
against the appellant were perpetrated. The complainants
were all still minors when they testified during the trial.
[11]
The advantage of the trial court to observe witnesses in court is
well established. Although
a court of appeal is not hamstrung by the
findings of the court
a
quo
,
lest the appellant’s appeal become illusionary, a court of
appeal will not lightly interfere with credibility findings.
Naturally the court
a
quo’s
observations and findings must be borne out by the record of
proceedings.
S
v Heslop
2007
(4) SA 38
(SCA)
para 13;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC)
paras 77– 80.
[12]
The court below delivered a detailed and thorough judgment accounting
for all the evidence, including
the contradictions in the evidence of
the witnesses on behalf of the state.
S v Doorewaard and
Another
2021 (1) SACR 235
(SCA);
S v Trainor
2003
(1) SACR 35
(SCA) ([2003]
1 All SA 435
;
[2002] ZASCA 125)
para 9 and
S v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426E –
H.
[13]
The court
a
quo
properly evaluated the evidence of the state witnesses whilst being
acutely aware and appreciating that he was faced with the evidence
of
several children that needed to be treated with caution. The court
a
quo
discussed the reasons for the cautionary rule, including amongst
others that children are highly imaginative, and their evidence
may
be of suggestion by others. The learned Magistrate referred to
S
v Viveros
2000 (2) SACR at 86 (SCA) at para 2 where it was held that ‘[S]uch
evidence may also be as a result of lack of judgement,
immaturity and
proneness to influence.’
[1]
[14]
In
S v V
2000 (1) SACR 453
(SCA) ([2000]
2 All SA 86)
Zulman JA said:
“
In view of the
nature of the charges and the ages of the complainants 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 (R v Manda
1951 (3) SA 158
(A) at H 163 C; Woji v Santam
Insurance Co Limited
1981 (1) SA 1020
(A) at 1028B - D); and that the
evidence in a particular case involving sexual misconduct may call
for a cautionary approach (S
v J
1998 (2) SA 984
(SCA) at 1009B). For
reasons which will presently emerge the present case is plainly one
which calls for caution.”
[15]
One must however also be mindful, as the court
a quo
fittingly
remarked, that children’s ‘power of narration is markedly
different from that of adult witnesses. Whether
we like it or not,
children will always remain children.’ The trier of fact, as
the court
a quo
observed, must be satisfied that the truth has
been told. Ultimately the question remains: did the state produce
evidence by means
of which such a high degree of probability was
raised that the ordinary reasonable man, after mature consideration,
would come
to the conclusion that there exists no reasonable doubt
that the appellant committed the crimes charged?
R v Mlambo
1957 (4) SA 727
(A) at 738A. The court
a quo
applied the test
enunciated in
S v Chabalala
2003 (1) SACR 134
(SCA) at
paragraph 15:
"The correct
approach is to weigh up all the elements which points towards the
guilt of the accused against all those which
are indicative of his
innocence, taking proper account of inherent strength 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 guilt. The
result may prove that one scrap of evidence or one defect in the case
for either party was decisive,
but that can only be an ex post facto
determination and the Trial Court should avoid the temptation to
latch onto one obvious aspect
without accessing it in the context of
the full picture presented in evidence."
[16]
The judgment clearly establishes the court
a quo
did not only
pay lip service to the cautionary rule. The court
a quo
was
recorded, as point of departure immediately after discussing the need
to approach the evidence of the child witnesses with
caution:
“
I should at the
outset mention that the evidence of the complainants was blemished by
a number of contradictions. I am alive to
these shortcomings, and I
may not be able to detail each and every conceivable contradiction
due to the nature and intricacy of
the evidence that was presented
herein. The mere of fact of not referring to each and every
conceivable discrepancy does not mean
that I have ignored such
discrepancy. All these discrepancies, whether mentioned or not, will
be viewed in light of the totality
of the evidence. I will however
try my utmost best to relate these discrepancies with the necessary
detail.”
[17]
The court proceeded to meticulously record the contradictions in the
evidence of the state witnesses
and then aptly remarked:
“
The question is
whether the above discrepancies are material viewed in light of the
evidence in its totality. The above discrepancies
should be
adjudicated in light of the fact that the evidence was narrated by
two 10-year-olds, as well as a 12-, 13- and 15-year-old.
One can also
not lose sight of the fact that the evidence was tendered sometime
after the commission of the alleged offences and
one should likewise
admit that for this evidence to have been suggested to the
complainants or for the evidence to be accepted
as a product of the
imagination of someone, extreme and intense planning should have gone
into preparing this version. There are
in my view a number of aspects
that negate any suggestion that this might have been a suggested or
concocted version.”
The
Court proceeded to consider the materiality of the contradictions
during the evaluation of the evidence with specific reference
to the
aspects which negates any suggestion that the complainants’
narration of events was the product of suggestion by someone
else or
a ‘concocted version’.
[18]
It should in my view also be borne in mind that contradictions
per
se
do not necessarily lead to the rejection of a witness'
evidence, they may simply be indicative of an error. Not every error
made
by a witness affects his/her credibility. In each case the trier
of fact must make an evaluation taking into account inter alia
the
‘nature of the contradictions, their number and importance, and
their bearing on other parts of the witness' evidence'.
S v
Mkohle
1990 (1) SACR 95
(A) at 98F–G and
S v
Oosthuizen
1982 (3) SA 571
(T) at 576B–C and 576G –
H.
[19]
As stated above, the appellant was convicted on counts 1, 10, 11 and
12.
19.1 The charge in
count 1 is the rape of a minor on or about the 2
nd
to 3
rd
of January 2017 at or near Bloemfontein by unlawfully and
intentionally committing an act of sexual penetration with OM, a
10-year-old
boy, by penetrating him anally without consent.
19.2 The charge in
count 10 is sexual exploitation of children on or about the 28
th
of December 2016 to the 3
rd
of January 2017
and at or near Bloemfontein in the Regional Division of the Free
State unlawfully and intentionally engaging
the service of KN, 13
years old, with or without the said complainant's consent for
financial or other reward, favour or compensation
to the said child
complainant or to the third person to wit KN by committing a sexual
act with the said complainant by penetrating
him anally and by
telling him to have intercourse with other minor children.
19.3 The charge in
count 11 is sexual exploitation of children on or about the 28
th
of December 2016 to the 31
st
of December 2016
and at or near Bloemfontein in the Regional Division of the Free
State unlawfully and intentionally engaging
the service of TR, 12
years old, with or without the said complainant's consent for
financial or other reward, favour or compensation
to the said child
complainant or to the third person to wit TR by committing a sexual
act with the said complainant by penetrating
him anally and by
telling him to have intercourse with other minor children.
19.4 The charge is
count 12 is sexual exploitation of children on or about the 31
st
of December 2016 and at or near Bloemfontein in the Regional
Division of the Free State unlawfully and intentionally engaging
the
service of KM, 15 years old, with or without the said complainant's
consent for financial or other reward, favour or compensation
to the
said child complainant or to the third person to wit KM by committing
a sexual act with the said complainant by penetrating
him anally and
by telling him to have intercourse with other minor children.
[20]
The sexual misconduct forming the subject matter of the charges were
perpetrated at the Revival
ground.
[21]
The appellant pleaded not guilty to all the charges. The crux of the
appellant’s version
is that the complainants were making up the
evidence against him and that the incidents did not occur. In summary
the appellant’s
version, dealt with below, is that he was
involved at the soccer tournament when the alleged deeds of sexual
misconduct that the
complainant’s testified about would have
taken place at the Revival ground from 28 to 30 December 2016. From
31 December
2016 to 4 January 2017 the appellant says that he was at
Mr Motlekane's home and thus he could not have perpetrated the acts
he
was charged with on those dates. His evidence succinctly
summarised:
21.1 He was
involved at ‘Japs’ where different teams participated in
a soccer tournament between 27 to 30
December 2016. He testified
that he was coaching his team during the tournament and was also one
of the tournament coordinators.
To this end the appellant testified
that he was involved at the tournament daily from 08h30 to
approximately 21h00. Mr lkaneng
assisted him as assistant or
co-coach.
21.2 The appellant
testified that he was at Mr Motlekane's house from 31 December
2016 to 4 January 2017. The
appellant testified that he
attended a party from 31 December 2016 to 1 January 2017 and from 2
January 2017 to 4 January 2017
he painted and paved at Mr Motlekane's
house.
21.3 The appellant
denied knowing the complainants and denied ever meeting the
complainants on of the dates as testified by
them.
21.4 Sello Khoare,
his witness, confirmed that the accused was at the Motlekane's house
from the 31
st
of December 2016 to the 4
th
of
January 2017. He testified that the accused arrived at around 11
o'clock on the 31
st
, but he couldn’t tell what the
accused was doing on this particular day since he, Khoare, was busy.
He said that the accused
left at about 19h00 and he was there again
on the 1
st
of January and he left around 19h30.
He further confirmed that the accused assisted him with painting
between the 2
nd
and the 4
th
and this in essence
also concluded the case for the accused.
[22]
It is common cause that a soccer tournament was held at ‘Japs’
and this tournament
took place from 28 to 30 December 2016
when some of the alleged incidents were perpetrated. It is also
common cause that
the appellant coached one of the teams that played
in the tournament and was involved at the tournament. The appellant
also admitted
that he is known as Bazooka.
[23]
Any contention that the evidence of the complainants was fabricated
or suggested to them or was
the product of someone’s
imagination must be rejected.
[24]
The five boys testified about incidents that spanned over a six-day
period. Only one boy, KN,
was present during all the incidents that
the complainants testified to, throughout the entire period. The
complainants’
testimony regarding the modus operandi that the
appellant followed in respect of the different incidents that
affected them personally
was virtually, or in the words of the court
a quo
‘in essence’, the same. The charges were
made with the SAPS on 3 January 2017.
[25]
The ‘golden thread’ of financial undertakings by the
appellant in exchange for sexual
intercourse runs throughout the
state case.
[26]
The court
a quo’s
conclusion, after evaluating the
evidence in totality and accounting for all the evidence, that
notwithstanding the shortcomings
in the state's case the truth has
been told, cannot be faulted.
[27]
The court
a quo
correctly rejected the accused’s version
(and alibi).
[28]
The appellant only appeals the imposition of the minimum sentence
regarding the rape.
[29]
Sentencing is pre-eminently a matter for the trial court's
discretion. In
S
v Malgas
2001
(1) SACR 469
(SCA) para 12
[2]
the court held as follows:
'A court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate court is of course entitled to consider the question of
sentence afresh. . . . However,
even in the absence of material
misdirection, an appellate court may yet be justified in interfering
with the sentence imposed
by the trial court. It may do so when the
disparity between the sentence of the trial court and the sentence
which the appellate
Court would have imposed had it been the trial
court is so marked that it can properly be described as shocking,
startling or disturbingly
inappropriate.'
[30]
In
S v Hewitt
2017 (1) SACR 309
(SCA) para 8 Maya DP
said:
'It is a trite principle
of our law that the imposition of sentence is the prerogative of the
trial court. An appellate court may
not interfere with this
discretion merely because it would have imposed a different sentence.
In other words, it is not enough
to conclude that its own choice of
penalty would have been an appropriate penalty. Something more is
required; it must conclude
that its own choice of penalty is the
appropriate penalty and that the penalty chosen by the trial court is
not. Thus, the appellate
court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that
it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it. So,
interference
is justified only where there exists a ''striking'' or
''startling'' or ''disturbing'' disparity between the trial court's
sentence
and that which the appellate court would have imposed. And
in such instances the trial court's discretion is regarded as having
been unreasonably exercised.'
[Emphasis in original
text and the footnotes are omitted.]
[31]
The appellant contends that the court
a quo
erred in not
concluding that compelling and substantial circumstances were present
that would justify a departure from the prescribed
minimum sentence.
The appellant argues that his personal circumstances in conjunction
with the fact that the complainant did not
suffer any serious
injuries and that the rape does not fall within the category of the
‘worst cases of rape’ constitute
compelling and
substantial circumstances.
[32]
The appellant elected not to testify in mitigation during the
sentencing stage as he is entitled
to do. His personal circumstances,
put on record by his legal representative, are as follows: The
accused was 50 years of age at
the time. His highest level of
education is grade eleven. The appellant was married but his wife
passed away. He has two children,
a daughter aged 21 who is currently
unemployed and a 14-year-old son in grade eight. The appellant
instructed his representative
that he is suffering from prostate
cancer, high blood pressure as well as diabetes. The appellant was a
soccer coach and coordinator
for Mangaung Football Association prior
to his arrest and incarceration and he earned R1 800.00 per month.
The appellant owns a
furnished two-room house. His biological mother
resides in Gauteng whilst his biological father is deceased. The
appellant was
in custody since January 2017.
[33]
In
S v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at p5 c-e Mahomed CJ
[3]
issued the following warning:
‘
Rape is a very
serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity
and the person of the
victim.
The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the Constitution and to any defensible
civilisation.
Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets,
to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the peace
and tranquillity of their homes
without the fear, the apprehension
and the insecurity which constantly diminishes the quality and
enjoyment of their lives.
The appellant showed no
respect for their rights. He prowled the streets and shopping malls
and in a short period of one week he
raped three young women, who
were unknown to him. He deceptively pretended to care for them by
giving them lifts and then proceeded
to rape them callously and
brutally, after threatening them with a knife. At no stage did he
show the slightest remorse.
The Courts are under a
duty to send a clear message to the accused, to other potential
rapists and to the community: We are determined
to protect the
equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.
’
[Own emphasis added]
[34]
In
Director of Public Prosecutions, Grahamstown v Peli
2018
(2) SACR 1
(SCA) at para 11 Hughes AJA remarked that:
‘
The curse in our
society, of rape, is considered by the courts, and society alike, as
deserving of severe punishment.’
[35]
Phatshoane AJA’s observations in
Director of Public
Prosecutions
,
Free State v Mokati
2022 (2) SACR 1
(SCA) at
para 42 are apposite to the matter at hand:
‘
The crimes which
impair the dignity of women and children, which violate their sexual
autonomy and privacy rights, such as rape
and other sexual offences,
are rampant in our society. Society craves justice and looks to our
courts to impose sentences commensurate
with the crime and fit for
the criminal.’
[36]
When sentencing the appellant, the court
a quo
appropriately
took into account the accused’s personal circumstances. No
factors appear from either the submissions before
us or the record
which can be said not to have been properly considered. The sentence
is not shockingly inappropriate. Having regard
to all the
circumstances encountered in this matter, the minimum sentence
imposed is manifestly fair and just. The court
a quo
balanced
the appellants’ personal circumstances against the other
relevant considerations and quite correctly also took the
interests
of the community into consideration.
[37]
In this matter life imprisonment on the count of rape is prescribed
as minimum sentence. The
sentencing court may only impose a lesser
sentence if it is satisfied that substantial and compelling
circumstances exist which
justify the imposition of a lesser sentence
than the sentence prescribed.
[38]
The trial court did not exercise its discretion improperly or
unreasonably when imposing the
sentence, nor did it commit any
misdirection. As stated, no substantial or compelling reasons are
present in this matter that would
justify the imposition of a lesser
sentence. In my view any lesser sentence than the prescribed minimum
sentence of life imprisonment
would be totally disproportionate and
therefore not constitutionally compliant.
[39]
The appellant’s previous convictions show a propensity to
sexually deviant conduct. The
appellant preyed on vulnerable children
and would have continued unabated with his conduct had it not been
for the intervention
of third parties. The victim impact assessment
establishes that the complainant must live with the emotional scars
and stigma for
the rest of his life. His dignity was taken from him
in the most callous manner.
[40]
The appellant has neither shown any insight into his conduct nor any
remorse.
[41]
The minimum sentence is eminently justified in the circumstances.
[42]
There is no merit in the attack on the sentence imposed by the court
a quo
.
[43]
As result, I dismiss the appeal against the convictions and
sentences.
N.
SNELLENBURG, AJ
I
concur and it is so ordered.
C.
VAN ZYL, J
On
behalf of the appellant:
Mr P.L. Van der Merwe
Instructed
by:
Bloemfontein Justice Centre
On
behalf of the respondent:
Adv M.M.M. Moroka
Instructed
by:
Director Public Prosecutions
[1]
The court
a
quo
also relied on the following passage in State v Aartman
1968 (3) SA
339
(AD) at 341C: "While there is always a need for caution in
such cases the ultimate requirement is proof beyond reasonable
doubt."
[2]
S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3
All SA 220; [2001] ZASCA 30).
[3]
S v
Chapman
1997
(2) SACR 3
(SCA)
(1997 (3) SA 341
;
[1997] 3 All SA 277
;
[1997] ZASCA
45.