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[2022] ZAECBHC 19
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Kavi v S (CA&R40/2021) [2022] ZAECBHC 19 (10 June 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, BHISHO]
CASE
NO:
CA&R40/2021
Heard
on: 10 JUNE 2022
Delivered
on: 10 JUNE 2022
In
the matter between:
SIMPHIWE
Kavi
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
NHLANGULELA
DJP
[1]
This is an appeal arising from the whole judgment of the Regional
Magistrate, Queenstown
(per Ms Sityata) convicting the appellant for
rape and sentencing him to undergo imprisonment for life.
[2]
The judgment on the conviction is impugned on the ground that the
magistrate
erred
in not accepting the evidence of the
appellant as being reasonably possibly true; and that the magistrate
erred
in accepting the evidence of the complainant despite the
fact that she was a child and single witness. The grounds of
appeal
against sentence are that the magistrate over-emphasized the
retribution and deterrence, the aims of sentencing; and also placed
much weight on the principle that a sentence of life imprisonment
should be imposed as a measure of protecting child victims of
rape
and assault with HIV disease.
[3]
The magistrate approached the matter on the basis that since the
State was enjoined
to discharge the
onus
based on the entire
evidence that was led at the trial it was not open to the appellant
to seek the determination of the verdict
on the basis merely of the
evidence that was adduced by him. In this regard the magistrate
applied the case of
S v Van der Meyden
1999 (1) SACR 447
(W)
where the following was stated at 448f-g:
“
The
onus
of
proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent (see, for example,
R
v Difford
1937 AD 370
at 373
and 383)...
In
whichever form the test is expressed, it must be satisfied upon a
consideration of all the evidence. A court does not look at
the
evidence implicating the accused in isolation in order to determine
whether there is proof beyond reasonable doubt, and so
too does it
not look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that it might
be true.”
[4]
The evidence adduced at the trial came from the complainant, accused
and two witnesses
for the State. On the consideration of all
the evidence the decision to convict, followed by sentence, ensued.
For the purpose
of this appeal, the first question arising is whether
the conviction for rape is supported by the evidence that was adduced
at
the trial.
[5]
I recount the salient facts of this matter which appears from the
record, and captured
in the judgment of the magistrate.
[6]
A [....] K [....] was 10 years old when she was raped; and 14 years
old when she testified.
During the night of 23 April 2017, a Sunday,
she was with her mother at Tender-Gate Location, Queenstown, when the
appellant arrived
on his motor vehicle, a double cab bakkie, to fetch
her for a pre-arranged trip to T [....] . The complainant and
her mother
had not expected the appellant to arrive at night, but due
to trust that the mother had in the appellant that her child would,
nevertheless, be in good hands, she allowed the complainant to leave
home. Since the complainant was schooling at N [....]
, T
[....] doing grade 5, the appellant would deliver the
complainant to the house of her aunt on Sunday where she
would sleep
and wake-up in the morning to attend school. According to the
complainant she and the appellant were alone in the vehicle
at the
time when they left the Tender-Gate residence. As they were
travelling, the complainant noticed that the vehicle was driven
towards Tsolwane Village, an opposite direction to that of T
[....] . The vehicle proceeded through the bushes until the
appellant
stopped it, ordered the complainant to go to the back-seat, undressed
and got on top of her and inserted his fingers
into her vagina in
preparation for penal penetration. She cried. The physical
under-development of the complainant thwarted the
appellant’s
attempt to penetrate the vagina with the result that the appellant
left the child at the back-seat and drove
off to, yet again, another
dark spot of the bush where he stopped and went for the complainant
again. On the second occasion, the
appellant lubricated his fingers
with saliva, inserted them into the vagina and, thereafter,
forcefully inserted his penis into
it. The excruciating pain that the
complainant felt and the vaginal bleeding she experienced due to
penal penetration caused her
to cry. At some stage the appellant
stopped the molestation, wiped off blood using his T-shirt and then
drove out of the bushes
until they reached Nalithemba Village, still
in Queenstown where he took on board V [....] , his girlfriend, and V
[....] ’s
sister together with her boyfriend. The trip to T
[....] then commenced. Before these three passengers joined
into
the vehicle, the appellant issued a stern order that the
complainant was not to tell anyone that he had molested her, failing
which,
he would shoot and kill bother her mother and father. On the
way to T [....] , V [....] saw the blood stained T-shirt
of the appellant and having asked the appellant about it she was told
by the appellant that he had been involved in a fight with
certain
male persons on that day.
[7]
It was still night time when the appellant and his passengers reached
T [....] . He
dropped off V [....] ’s sister and her boyfriend
at their place of residence and proceeded to the house of V [....]
where
the complainant was caused to sleep for the night. In the
next morning the appellant took complainant to the residence of the
complainant’s
aunt, Aunt Babes. She was scared to report her
ordeal to Aunt Babes for fear that her parents would be killed by the
appellant.
She could only complain of extreme fatigue which disabled
her from attending school. In turn, Aunt Babes reported the situation
to the complainant’s mother through the telephone. On the
request of the mother, the appellant was told to return the child
back to Tender-Gate Village on Wednesday 26 April 2017. He adhered to
that request. Having reverted to the custody of her mother,
the
complainant reported that the appellant had raped her. On 30 April
2017 the complainant was taken to the doctor for medical
examination.
The complainant told the court that she would not have been able to
report her ordeal to V [....] during
the trip to T
[....] and Aunt Babes in T [....] during her stay
with her as the appellant had warned her
that should she do so he
would kill her parents.
[8]
Dr Nombulelo Fani-Sicu testified on behalf of the State. She told the
court that the
complainant had indeed been forcefully penetrated
vaginally as vaginal injuries coupled with the evidence of broken
hymen that
she observed during medical examination supported the
report given by the complainant that she had been raped. The
examination
also revealed that the child was infected with HIV most
probably at the time when she was sexually penetrated. The medical
report
of Dr Fani-Sicu was exhibited in court as evidence.
[9]
Ms T [....] D [....]is the mother of the complainant and her father
was married to
the sister of appellant’s mother. In turn, the
appellant related to the complainant on uncle-niece basis. She
testified
that the appellant had accepted her request to transport
her child to T [....] on 23 April 2017. She and the complainant
had waited from the morning until his arrival at night for the trip
to be undertaken. She and the complainant were already sleeping
when
the appellant arrived only after 9 pm to fetch the child. Having
suspected no evil and their relationship having been a good
one she
had not suspected that her child could be sexually abused by the
appellant. Ms D [....] confirmed that the complainant
did report to
her that she had been raped by the complainant, whereafter, she
invited the appellant to a meeting at her house to
explain to her as
to why he abused the child. According to Ms D [....], the appellant
merely denied that he had abused in any way
the child. She,
nevertheless, reported the matter to the police who wasted no time to
arrest the appellant in order to account
for his criminal deeds. She
told the court that the child had been diagnosed with HIV for the
first time after she was raped.
[10]
Ms D [....] also told the court that one A [....] M [....], the local
man, informed her that
the appellant had hired him to shoot and kill
her and the complainant in order to obliterate the evidence and
escape prosecution
for raping the complainant. Such information was
given at a meeting held in T [....] in which Ms D [....]’s
mother
was also present, and Mr M [....]. She gave a sum of R200,00
as a reward for having refused to carry out the instructions of the
appellant. Ms D [....] told the magistrate that her family and that
of the appellant were in good terms. She denied that her father
was a
source of rift between the families despite that appellant’s
family members has a suspicion that her family had misused
pension
monies earned by her father while he was staying with L [....], his
sister, away from his wife (sister to the appellant’s
mother).
Ms D [....] disputed the appellant’s version that one Boss, her
niece aged 19 or 20 years old in 2017, was the person
who raped the
complainant because Boss had barely left the Eastern cape for Cape
Town at the time when the complainant was six
months old. On the
issue of HIV infection, she testified that the complainant never had
that disease until after the occurrence
of rape.
[11]
Mr M [....] was called to testify on behalf of the State. He
confirmed the evidence of Ms D [....]in
so far as it related to him,
and stated that he had reported to Ms D [....]that the
appellant was planning to kill her and
the complainant for the reason
that he, the appellant was facing prosecution for raping the
complainant.
[12]
Under cross examination the complainant and Ms D [....] denied that
the appellant was being implicated
in raping the complainant on
fabricated evidence. The complainant and D [....] also denied that
one Boss was the person who raped
the complainant. According to Ms D
[....] the complainant had never met Boss in her life. Ms D [....]
refuted that the allegation
that Boss raped her child as Boss was not
present in Queenstown on 23 April 2017.
[13]
The appellant testified in his own defence. He told the Court that
there was never a stage during
the night of 23 April 2017 at which he
alone had to fetch the complainant, his niece, on a motor vehicle.
The version he gave is
that they were four people in his double-cab
bakkie when he fetched the complainant. He did not know that the
complainant was raped
until he was confronted by the complainant’s
mother on Thursday, which was the 27 April 2017, and asked to
apologise for
raping the complainant by paying a sum of R10 000,00
which he refused to do. He also told the magistrate that it was Ms D
[....] who told him that Boss had sexually abused the complainant.
Under cross-examination he contradicted himself regarding in
testifying that he was asked to return complainant back to her mother
due to the upcoming holiday on 27 April 2017, having earlier
on
conceded that Ms D [....] had asked him to return the child back to
her as she was not in good health.
[14]
In her judgment, the magistrate made critical findings implicating
the appellant in the commission
of the offence of rape and that,
inferentially the HIV infection in the appellant had been transferred
to the complainant in the
cause of rape. She found that the evidence
of the complainant, treated cautiously, was satisfactory in all
material respects. She
accepted the medical evidence led on behalf of
the State that the complainant was indeed sexually penetrated by the
appellant.
In so far as the approach of the magistrate to the
evidence adduced by the complainant is concerned the following words
as recorded
in the judgment are relevant and repeating them here is
appropriate in my view. She said:
“
The court has
searched
(sic)
the evidence as a whole. The complainant as a
single child witness has been found to be a very impressive witness.
Her evidence
comprised of detailed and consistent narration of facts.
She maintained stability throughout her testimony, she never showed
reluctance
[indistinct]. The complainant even though she was a child
witness she is found to be tangible
(sic)
and reliable. There
could be no reason to believe that she had been couched or she was
imagining facts.”
[15]
The magistrate found that the evidence of the appellant was not
reasonably possibly true. She
took into account numerous disturbing
features of the appellant, such as the misrepresentation of the fact
that he was not in company
of 3 people in the double-cab bakkie at
the time when he fetched the complainant for a trip to T [....]. He
fabricated a version
that there was a friction between his family and
that of the complainant’s mother. He misrepresented the facts
in substituting
himself for Boss as the rapist well knowing that Boss
had not been living with the family of the complainant. He was not
honest
in telling magistrate that he was not aware that he had
already been diagnosed with HIV and Aids in 2016 when he raped the
complainant.
[16]
In this case the magistrate did approach the evidence of the
complainant with necessary caution
deserving to be applied to a child
victim of rape and a single witness as it was warned in
R v Manda
1951 (3) SA 158
(A) at 162E – 163E; and recently in
S v
Dyira
2010 (1) SACR 78
(ECG) at 84, para [6] where the following
was said:
“
The
courts should be aware of the danger of accepting the evidence
of a little child because of potential unreliability or
untrustworthiness, as a result of lack of judgment, immaturity,
inexperience, imaginativeness, susceptibility to influence and
suggestion, and the beguiling capacity of a child to convince itself
of the truth of a statement which may not be true or entirely
true,
particularly where the allegation is of sexual misconduct, which
is normally beyond the experience of small children
who cannot be
expected to have an understanding of the physical, social and moral
implications of sexual activity (
S v
Viveiros
[2000] 2 All SA 86
(SCA) para 2). Here, more than one cautionary rule applies to the
complainant as a witness. She is both a single witness and a
child
witness. In such a case the court must have
proper
regard to the danger of an uncritical acceptance of the evidence of
both a single witness and a child witness (Schmidt
Law
of Evidence
4-7).”
[17]
The complainant did not contradict herself in the witness box; her
evidence was not shown to
be improbable in that she was with the
appellant at the time relevant to the commission of rape when the
appellant had the opportunity
to rape her; and she reported the
sexual assault upon her at the earliest opportunity dispelling any
possible notion that she was
bent towards implicating the appellant
in the commission of rape falsely; or that she was acting on
suggestibility by elders.
[18]
The findings of the magistrate and the conclusion she made regarding
the commission of rape are
not assailable in my view.
[19]
Counsel for the appellant attacks the verdict of the magistrate on a
myriad of fronts, which
may be abbreviated as follows:
(a)
There is evidence that called for the magistrate to call
for the
evidence of Boss as he is the person who allegedly raped the
complainant; the medical evidence is not satisfactory; V [....]
should have been called as a witness to clarify the report
given by the complainant to the doctor that the blood-stained
T-shirt
belonged to the complainant; Ms D [....]’s aunt attended a
meeting in which the appellant disavowed knowledge of
rape and
refused to pay R10 000,00 which required the magistrate to do
the following:
(i)
seek corroborating evidence as stated in the case of
R v Miranda,
supra
;
(ii)
caution herself about the principle of law that the peculiar
difficulties
often presented in the prosecution of rape cases always
call for greater caution to be exercised by the courts, and moreso
where
the complainant is a child witness, as the courts were
instructed to do so in the case of
S v Matshivha
2014 (1) SACR
29
(SCA);
(iii)
to be alive of a need for careful preparation and presentation of
evidence
by the prosecution, and for the court to scrutinise such
evidence meticulously as instructed in the case of
S v Vilakazi
2009 (1) SACR 552
(SCA).
[20]
The thrust of the submissions advanced on behalf of the State is that
the issue raised at the
trial was the identity of the perpetrator.
The occurrence of rape was never the issue. And the issue concerning
the ability and
capacity of the complainant to identify the appellant
as the rapist was not raised when the complainant testified in the
witness
box. Indirectly, however, it was put to the complainant that
Boss, not the appellant, raped her. The complainant together with her
mother denied that version. When the mother testified she made it
plain that Boss was in Cape Town at the time when her child was
raped; and that he was not even known to the complainant as he had
last been at the family home when the complainant was barely
six
months old. The appellant did not pursue this version when he
testified because he merely said that he did not see Boss raping
the
complainant but he was told by the complainant’s mother that
Boss had raped the complainant. In the circumstances, the
magistrate
correctly rejected the appellant’s evidence as inadmissible
hearsay.
[21]
The version of the appellant that Ms D [....]’s mother and aunt
were present at the meeting
where R10 000,00 was sought to be
extorted from him could at the very least be indicative of
opportunism for wealth-making
rather than a distorted account about
rape on the part of the complainant who is proved by her own evidence
to be steadfast in
her convincing narrative that she was sexually
molested by the appellant. At no stage of the proceedings was she
shown by evidence
to have told a lie that she was raped merely to
ramp up fear in the mind of the appellant to facilitate payment of
R10 000,00.
That version was in any event correctly rejected by
the magistrate.
[22]
The evidence of the complainant that the appellant used his T-shirt
to wipe-off blood caused
by vaginal injury that was later on
discovered by V [....] was not challenged by the appellant.
That being the case, the
magistrate was correct in accepting that
admitted evidence without corroborating evidence of V [....] .
[23]
In the event, a need for the magistrate to call for the evidence of
Ms D [....]’s aunt
and V [....] did not arise.
[24]
Equally so, there is no basis for the submission that the magistrate
ought to have discredited
the expert/medical evidence of Dr Fani-Sicu
that the complainant’s vagina showed signs of sexual
penetration. It was not
open to the magistrate to reject such
evidence without regard to another expert evidence of better quality.
In so far as the doctor
adverted to factual evidence of a report
given to her by the complainant concerning the history of her
injuries, including that
of a blood-stained T-shirt, the appellant
ought to have challenged that evidence with the complainant at the
time when she testified.
That did not happen.
[25]
Consequently, it is not hard to see that the case law sought to be
relied upon in argument advanced
on behalf of the appellant does not
address the proven facts. On the contrary, to the extent that the
cases of
Manda, Matshiva and Vilakazi
relate to the cautionary
rule that is applicable to the single evidence of a child witness in
rape cases, the principles set out
therein were adhered to by the
prosecution as well as the magistrate.
[26]
In the circumstances, the appeal against conviction does not have a
merit.
[27]
I now turn to deal with the appeal against sentence of life
imprisonment that was imposed under
the provisions of s 51 (1) to the
Criminal Law Amendment Act 105 of 1997
; and in the circumstances
where the appellant had been convicted of raping a
10
years old
complainant without any substantial and compelling
circumstances having been found to reduce such sentence to a lesser
one. It was
submitted on behalf of the appellant that had the
magistrate not erred in finding that the appellant infected the
complainant with
HIV and Aids; in placing too much weight on the need
to protect the appellant’s right against sexual abuse; and in
over-emphasizing
the retribution and deterrence aspects of
sentencing, a lesser sentence than life imprisonment would have been
imposed.
[28]
The circumstances that the magistrate took into account for the
purposes of sentence were the
following: the appellant was 56 years
old, married and having four minor children; he was gainfully
employed; he was a first offender;
and he had spent three years and
six months in police custody whilst awaiting for the finalization of
the trial. In considering
the nature of the offence of rape committed
by the appellant, the magistrate had regard to the seriousness of the
crime of rape
committed upon the complainant who was barely 10 years
old when she was sexually molested; the appellant is related to the
complainant
as her uncle. Trust had been reposed upon him to
transport the child to T [....] without the presence of her
mother. Instead,
the appellant raped the child, and well-knowing that
he was HIV positive with the result that the disease got transmitted
to the
child. The child is now suffering from trauma that has made it
difficult for her to cope with her schooling. The magistrate took
into account that the commission of rapes upon vulnerable women and
children is prevalent in society, referring in this regard
to the
case of
S v S
1995
(1) SACR 50
(SCA) where the following was
stated:
“
The essence of the
crime and assault on the body integrity of a woman’s
femininity. If it is the function of the criminal
law to protect
members of society from those who employ illegal means to prey on
those less able to defend themselves, then rape
is rightly regarded
as a crime with the utmost gravity.”
[29]
With reference to the crime of rape specifically, the magistrate
said:
“…
the
complainant’s rape case has been highlighted in
S v Ntsetse
2002 (3) SACR 386
(W) where the rape is described as an appalling and
utterly outrageous crime. It threatens every woman and particularly
the poor
and vulnerable. Protection of women’s rights remains
rife more especially the poor and vulnerable being considered amongst
the ley factors being considered by the courts when imposing
appropriate sentences. The courts are the last hope of victims of
these kind of crimes. The court has a duty by imposing an appropriate
sentence to convey a message to the community out there that
this
crime will never be tolerated.”
[30]
The protection of women and children against sexual abuse is a matter
that pretty much fall within
the sentencing scheme of Act 105 of
1997. This point was underscored in the case of
S v M
2002 (2)
SACR 60
(W), where a victim of rapes was a child under the age of 16.
In
S v Snoti
2002 (1) SACR 660
(E) the full bench
confirmed a sentence of life imprisonment where the victim of rape
and infection with HIV and Aids was a
9 years
old girl.
A similar approach was
followed in
S v Genever & Others
[2008] ZAWCHC 7
;
2008 (2) SACR 117
(C)
where the sentencing aims of prevention, retribution, deterrence as
well as rehabilitation were considered as working in harmony
with a
sentencing scheme under Act 105 of 1977. On the facts that are very
similar to those of the present matter, in
S v Lindikhaya
Mpumlo
, Case No. 50/2021 (ECD, Makhanda) dated 07 March, 2022
(unreported) the court found that substantial and compelling
circumstances
did not exist, and imposed a sentence of life
imprisonment.
[31]
On the consideration of the facts of this case and the principles of
sentencing as articulated
in the cases referred to in para [30], it
cannot be said that the sentence imposed by the magistrate is
affected by misdirection;
or is “shocking”; “startling”
or “disturbingly inappropriate”. See:
S v Malgas
2011 (1) 469 (SCA) at 478, para 12. Neither is the sentence of life
imprisonment imposed disproportionate to the personal circumstances
of the appellant, the crime and the needs of society. See:
S v
Malgas
at 482e; and
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at
614-615.
[32]
In the result the following order shall issue:
The appeal against
both the conviction for rape and sentence of life imprisonment is
dismissed.
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
MTHATHA.
I
agree:
A.
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the appellant :
Adv. N.P.
Mtini
Instructed
by
:
Legal Aid South Africa
KING WILLIAMSTOWN.
Counsel
for the respondent :
Adv. N. Ngxingwa
:
Deputy Director of Public Prosecutions
BHISHO