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[2022] ZANCHC 26
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P.W v S (CA&R7/2022) [2022] ZANCHC 26 (20 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: CA&R 7/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
P[….]
W[…..]
Appellant
and
THE
STATE
Respondent
Coram:
Lever J
et
Chwaro AJ
JUDGMENT
CHWARO
AJ
:
Introduction
[1]
The appellant was arraigned before the Northern Cape Regional Court,
Kimberley on one count of contravening the provisions of
section 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
No 32 of 2007
read with
section 51(1)
of the
Criminal Law Amendment
Act 105 of 1997
, to wit, having committed an act of sexual
penetration with a 12-year-old girl who was mentally retarded. On 18
February 2019,
the appellant , who was legally represented, pleaded
not guilty to the charge against him. On 28 November 2019, he was
convicted
as charged.
[2]
On 23 March 2020, the appellant was sentenced to life imprisonment in
line with the minimum sentence regime provided for in
section 51(1)
of Act 105 of 1997. The trial Court made concomitant declaratory
orders in terms of section 24 of the Children’s Act No 38
of
2005 regarding the appellant’s suitability to work with
children , an order that his name be included in the register
of
sexual offenders in terms of section 50(2) of Act No. 32 of 2007 and
an order in terms of
section 103(3)
of the
Firearms Control Act, No.
60 of 2000
declaring the appellant to be unfit to possess a firearm.
The appeal before us is in respect of both conviction and sentence.
[3]
The appeal was noted outside the prescribed time periods and an
application for condonation was launched for simultaneous
consideration
and determination with the appeal. The condonation
application is not opposed by the State. I have considered the
reasons for the
late prosecution of the appeal and the possible
prospects of success and am of the view that it is in the interests
of justice
that condonation be granted.
Material
background facts
[4]
The State alleges that on the evening of 9 April 2017 and at Ritchie,
the appellant committed an act of sexual penetration with
the
complainant, VM, who was allegedly 12 years old and mentally
retarded. The appellant denied the allegations against him. The
State
led evidence of four witnesses and the appellant testified in his own
defence and also led evidence of one witness.
[5]
During the course of the proceedings, a medical report prepared by Dr
Z Piotrowski, a specialist psychiatrist, was admitted
by agreement
between the parties. The report details the outcome of an interview
which Dr Piotrowski conducted with the complainant
on 26 March 2018
to evaluate her mental state. The report concluded that the
complainant had a moderate cognitive impairment (mental
retardation)
which resulted in her not being able to appreciate the nature and
reasonably foresee consequences of the sexual act
at the time of the
alleged offence.
[6]
The record reveals that during the evening of 9 April 2017, the
appellant was in the company of KW, MK and the complainant.
The four
of them were walking towards Pelindaba. Along their way, KW felt the
need to relieve herself and diverted to the side
of the road. She was
joined by MK. The appellant and the complainant initially remained
behind on the road but later went to stand
behind a tree , which
obscured their visibility from both KW and MK.
[7]
Whilst busy with her business, Ms KW testified that she overheard the
complainant uttering words to the effect “
ahh
” and
“
you are hurting me
”. She enquired from the
complainant, who was visibly in pain and in discomfort , about what
she overheard. She testified
that the complainant told her that the
appellant raped her. She did not confront the appellant about the
complainant’s accusation.
[8]
Mr MK, who was with KW at the relevant time, testified that he did
not hear the complainant uttering any words as indicated
by KW. He
testified that MK and the complainant were just standing behind the
tree and joined them back on the road when they were
suddenly
confronted by members of the local anti-crime organisation,
Wanya
Tsotsi
, who then ordered them into their vehicle and drove off to
the complainant’s grandmother’s place and finally to the
Modderrivier police station. It was at the police station that MK
testified that he heard the complainant telling police officers
that
the appellant raped her.
[9]
Ms EN, a member of
Wanya Tsotsi
, testified that during their
routine patrol on the night in question, she saw four people standing
next to the road. She became
more curious when she realised that one
of these people was a child. She confronted them and asked the three
adults as to what
they were doing with a child during that time of
the night. It was at that moment that the complainant told her that
the appellant
did naughty things to her. She also observed that there
were pieces of grass and soil on the back of the complainant.
[10]
She confronted the appellant about the accusation by the complainant.
The appellant initially denied having done anything to
the
complainant but later told her that he just rubbed his penis against
the complainant’s thighs. She and her colleagues
then drove off
with all four of them, with the complainant sitting with her in the
front seat, towards the latter’s grandmother’s
place and
eventually went to the police station where a criminal case was laid
against the appellant.
[11]
Dr Esmè Olivier, a medical practitioner with thirty-four
years’ experience, testified that she examined the complainant
at about 23h45 on 9 April 2017. She completed a J88 form where she
recorded her observations following her examination and noted
that
her clothing was normal and there were no other visible physical
abnormalities.
[12]
She testified that all the complainant’s external genitalia
were swollen and tender to touch, the posterior fourchette
was intact
but red and tender to touch with a swollen hymen. She could not do
internal investigations as it was painful to the
complainant.
Accordingly, she concluded that there were signs of labial and
hymeneal penetration with no injuries.
[13]
Dr Olivier sought to collect more evidence through the insertion of a
swab into the complainant’s vagina which was then
sealed and
sent for DNA examination. The DNA results were handed in by agreement
and it revealed that there was not enough male
DNA that was obtained
from the relevant swab. She further testified that the injuries
occurred some 6 to 8 hours prior to her examination
of the
complainant. She testified that there was history of an apparent
sexual abuse 2 years prior to the alleged incident.
[14]
The complainant did not testify as the trial court found that she was
not a competent witness. The finding followed upon an
enquiry that
was conducted subsequent to the provisions of
section 164
of the
Criminal Procedure Act, No. 51 of 1977
, through the assistance of an
intermediary, to find out whether the complainant knew the difference
between telling lies and telling
the truth, whether she knew what it
was to tell the truth and that it was wrong to tell lies
[1]
.
In the result the complainant could not be admonished to tell the
truth nor sworn in as a witness.
[15]
An application for a discharge in terms of the provisions of
section
174
of the
Criminal Procedure Act was
pursued on behalf of the
appellant at the end of the State’s case. The application was
refused by the trial Court.
[16]
The appellant testified in his own defence. He stated that on the
evening in question, he was in the company of MK, KW and
the
complainant on their way to Pelindaba. He had never met KW or the
complainant prior to that evening.
[17]
Along their way, MK went into the nearby bushes with KW. He knew that
the former was going to engage in a sexual encounter
with the latter
whilst he remained with the complainant behind. He later went to
stand behind a tree with the complainant until
they were all
confronted by the anti-crime group,
Wanya Tsotsi
. He denied
ever having had sexual intercourse with the complainant or admitting
having rubbed his penis against her thighs as EN
testified.
[18]
The appellant denied having ability to be aroused as he claimed to
have had a medical condition that affected his manhood,
a fact that
he claimed could be attested to by a medical doctor who attended to
his condition.
[19]
The defence’s second witness, Dr Japie Bosman testified that
the appellant had some medical condition related to his
sexual
organs, but such condition could not prevent or in any way inhibit
him from engaging in sexual activity. He testified that
he treated
the appellant’s last medical condition some few months prior to
the date of the incident in this case and thus
such condition cannot
be attributed to the appellant’s alleged failure to engage in
sexual activity.
Findings
by the trial court
[20]
The trial Court accepted the evidence presented by the State, though
with much criticism, especially on the testimony of KW
and MK, who
the Court found that they had something to hide in respect of what
actually happened on that evening. The learned Regional
Court
Magistrate rejected the appellant’s denial as not being
reasonably possibly true.
[21]
In convicting the appellant, the trial Court relied on the hearsay
evidence as testified by KW and MK about what the complainant
told
them. In the judgment, the learned Regional Court Magistrate made the
following findings:
“
According
to him they were talking there. I also find it strange that the child
immediately after being with the accused behind
a tree that evening,
would mention at the Modderrivier police station that she was raped
by the accused.
The accused is the
only person that the child was with behind this tree. And apart from
that, the child made a report to [KW ] to
say the accused raped her.
Mr [MK] testified that the child mentioned, he heard the child at the
Modderrivier police station saying
she was raped.
And
the child said it without persuasion and she said it out of own
accord. Now that would be the second time the child mentioning
that
she was raped and that proves consistency on the part of the child
”
.
[22]
In its judgment, the trial Court further made findings to the
following effect:
“
[K]
and [M] they want the court to believe that they did not see what was
happening behind the tree. But the fact that the child
made
allegations, that is the reports and Katy seeing the pain and
discomfort the child was in and the fact that the child cried
“eina,
jy maak my seer”. The grass that was seen at the child’s
back, together with the clinical findings are
all evidence
strengthening the state’s case
”
Grounds
for appeal
[23]
Considered in their context, the appellant grounds of appeal on
conviction are that the trial Court erred in relying on hearsay
evidence about what the complainant told some witnesses without
having made a ruling on its admissibility in terms of the relevant
provision of section 3 of the Law of Evidence Amendment Act 45 of
1998, especially since the complainant was declared as an incompetent
witness and that the trial Court erred in finding that the State
proved its case beyond reasonable doubt in respect of the actual
rape, the age of the complainant and the appellant’s knowledge
that the complainant could not give valid consent due to her
mental
retardation.
[24]
On sentence, the appellant contends that the trial Court erred in
finding that there were no substantial and compelling circumstances
to deviate from the imposition of minimum sentence in terms of
section 51(1)of Act 105 of 1997.
Evaluation
on conviction
[25]
The established facts are that on the evening of the incident, the
complainant was in the company of the appellant and two
others, Ms KW
and Mr MK. At some stage whilst they were in each other’s
company , KW and MK left the appellant and the complainant
on their
own behind a tree. KW overheard the complainant uttering the
following words: “ahh” and “you are hurting
me”.
All four individuals were then confronted by members of the local
anti-crime organisation.
[26]
On approaching them, Ms EN of
Wanya Tsotsi
observed grass and
soil on the back side of the complainant. The complainant ended up at
the police station where a criminal case
was laid against the
appellant and whereafter she was taken to hospital for examination.
The clinical observations and findings
by the medical doctor
indicated signs of labial and hymeneal penetration with no injuries.
[27]
Given the facts outlined above, this Court is then called upon to
determine whether the trial Court properly convicted the
appellant on
the charge he faced and imposed an appropriate sentence.
Ruling
on the admissibility of hearsay evidence
[28]
It is an established principle that a court of appeal will only
interfere with a conviction by a trial Court if it is satisfied
that
the latter court made wrong factual findings on the evidence
presented.
[2]
[29]
It is apparent from the record and the judgment that the Learned
Regional Court Magistrate placed reliance on hearsay evidence
relating to what the complainant allegedly told KW and EN about
having been sexually penetrated by the appellant. This hearsay
evidence constituted evidence upon which the trial Court convicted
the appellant.
[30]
The admission of the complainant’s hearsay evidence was done
though the record reveals that during the trial, there
was no
agreement between the State and the defence on the introduction and
admission of such evidence nor was there an attempt
made by the
prosecution to lay the basis upon which such evidence could have been
admitted in terms of the provisions of section
3 of the Law of
Evidence Amendment Act 45 of 1998.
[31]
Notwithstanding a ruling that the complainant was an incompetent
witness, the trial Court did not apply its mind to the issue
relating
to the admissibility of the complainant’s evidence nor made a
ruling on its admissibility. This failure to deal
with hearsay
evidence by the trial Court affected the fair trial rights of the
appellant and cannot be countenanced.
[32]
In
Ndhlovu
[3]
the Court cautioned that a trial Court must be appraised of the
status of the hearsay evidence before it well in advance and must
fully apply its mind to the hearsay evidence and make a ruling on its
admissibility to avoid a trial by ambush.
[33]
Since the trial Court failed to heed this warning, the concession
made by
Mr Hollander
, on behalf of the State was, in
my view, correctly made and thus the attack on this finding by
Mr
Steynberg
on behalf of the appellant ought to be upheld.
Sufficiency
of circumstantial evidence
[34]
The record reveals that the learned Regional Court Magistrate
identified the fact that KW saw the complainant to have been
in pain
and discomfort after having heard her uttering words to the effect
that the appellant was hurting her, that EN saw grass
and soil
particles on the complainant’s back and the clinical findings
by the medical doctor to be sufficient evidence strengthening
the
State’s case against the appellant.
[35]
The
locus
classicus
on circumstantial evidence is
Blom,
[4]
in which it was held that two cardinal rules of logic which could not
be ignored when it came to reasoning by inference were that
(a) the
inference sought to be drawn must be consistent with all the proved
facts and if it is not, then the inference cannot be
drawn and (b)
the proved facts should be such that they exclude every reasonable
inference from them save the one sought to be
drawn.
[36]
In assessing circumstantial evidence, courts have been cautioned not
to consider pieces of evidence on an individual basis
but to assess
the cumulative impression of all evidence together. This much was
stated in
S
v Reddy and Others
[5]
in the following terms:
“
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration whether it excludes
the reasonable possibility that the explanation given
by the accused
is true. The evidence needs to be considered in its totality. It is
only then that
one
can apply the oft-quoted dictum in R v Blom….”
[37]
On consideration of the record, the proved facts are that the
appellant, KW, MK and the complainant were walking together on
the
night of the incident. KW and MK at some stage left the appellant
together with the complainant. Whilst they were behind a
tree,
neither KW nor MK could see what they were doing there, except that
KW overheard the complainant uttering the words to this
effect: “
ahh”
and “
you are hurting me
”.
[38]
I must emphasise that it was not disputed that the complainant, KW,
MK and the appellant were the only people who were present
when the
cry out from the complainant was heard by KW. There can be no serious
contention that KW might have heard the words attributed
to the
complainant from someone else.
[39]
Ms EN from Wanya Tsotsi and KW observed grass and soil on the back
side of the clothes that the complainant was wearing. Objective
medical evidence following examination of the complainant confirmed
that there was labial and hymeneal penetration though there
were no
injuries, with some swelling indicative of an incident that occurred
some 6 to 8 hours before the medical examination.
[40]
The fallacy
of the suggestion by the appellant that it was impossible for him to
engage in sexual encounter with the complainant
as alleged by the
State due to his medical condition was refuted by his own witness, Dr
Bosman, his attendant medical practitioner.
[41]
Having cumulatively considered all these established facts , it is my
view that the
inference
was correctly drawn that the appellant was guilty of rape of the
complainant. His conviction ought to stand.
Admissible
evidence on the age of the complainant
[42] Though
the charge sheet spelt out that the appellant was being accused of
rape involving a victim who was 12 years of
age, it is apparent from
the record that the State did not lead any admissible evidence to
prove the age of the complainant at
the time of the commission of the
offence.
[43] In
the absence of any credible and admissible evidence demonstrating the
age of the complainant at the time of the commission
of the offence,
the trial Court erred in convicting the appellant as charged and as
will be discussed below, sentencing him in
accordance with the
provisions of section 51(1) read with Part I of Schedule 2 of Act 105
of 1997.
[6]
[44] This
aspect was readily conceded on behalf of the State and consequently,
there was no basis upon which the appellant’s
conviction and
consequent sentence would have been premised on the application of
section 51(1) read with Part I of Schedule 2
of Act 105 of 1997.
Evaluation
on sentence
[45] This
Court’s power to interfere with the sentence imposed by the
trial Court is limited. The limitation was expressed
in the following
manner by the Constitutional Court in
Bogaards
[7]
:
“
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it
”
[46] In
my view, the trial Court’s finding and its imposition of the
minimum sentence regime as prescribed in section
51(1) of Act 107 of
1997 was a clear misdirection which calls for interference by this
Court. The imposition of a sentence of life
imprisonment falls to be
set aside and be replaced with an appropriate sentence as determined
in section 51(2) of Act 107 of 1997.
[47] The
reconsideration of an appropriate sentence calls upon this Court to
consider the conviction, the
totality of the
triad of facts and to exercise its discretion judicially and in a
proper manner by, amongst others, considering
the personal
circumstances of the appellant, the circumstances surrounding the
offence and the interests of society.
[48]
The above factors must be considered in line with the established
principles of punishment,
being retribution,
prevention of crime, deterrence of would-be criminals and reformation
of the offender.
[49]
The appellant’s personal circumstances are fully canvassed in
the pre-sentence report and the correctional supervision
report
presented before the trial Court. At the time of his sentencing, the
appellant was 55 years old, unmarried man with an unidentified
chronic condition. He had a 36-year-old daughter. He relied on
pension grant for a living and attended school up to standard three.
Upon being sentenced, he had been in custody for 4 years awaiting
trial and was diagnosed with asthma whilst in custody.
[50]
The seriousness of the offence of rape cannot be
overemphasised. This must also be seen against the personal
circumstances of the
complainant who had to undergo medical attention
as a result of her experience with the appellant. The appellant
committed a serious
and dehumanising offence which the Legislature
found it appropriate to prescribe minimum sentences.
[51]
On a consideration of the totality of the appellant’s personal
circumstances , the interest of society and the offence
upon which he
was convicted, I find that the there are no compelling and
substantial circumstances which dictate the imposition
of a lesser
sentence than the prescribed minimum sentence as provided for in
section 51(2) read with Part II of Schedule 2 of Act
105 of 1997.
Order
[52]
In the premises, the following order is made:
1.
The appeal against conviction is refused.
2.
The
appeal against sentence is upheld and the order of the trial Court is
set aside and replaced with the following order:
2.1. The appellant is
sentenced to ten (10) years imprisonment.
2.2. The sentenced in
paragraph 2.1. above is antedated to 23 March 2020.
________________
OK
CHWARO
ACTING
JUDGE OF THE HIGH COURT
I
concur
____________________
L
LEVER
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
09 May 2022
DATE
OF JUDGMENT:
20 May 2022
APPEARANCES:
For
the Appellant:
Mr H. Steynberg
Instructed
by:
Legal
Aid South Africa
Kimberley
For
the Respondent
:
Adv Q Hollander
(With him Adv S Sauls)
Director
of Public Prosecutions: Northern Cape
Kimberley
[1]
See
also Matshivha v S
2014 (1) SACR 29
(SCA)
[2]
See
S v Monyane and Others 2008(1) SACR 543 (SCA) at 547
[3]
S v Ndhlovu and Others
2002 (2) SACR 325
(SCA) at 338a-c
[4]
R
v Blom 1939 AD 188
[5]
1996
(2) SACR 1
(A) at 8C-D
[6]
See
S v Tshimbudzi
2013 (1) SACR 528
(SCA) at para 6
[7]
S
v Bogaards
2013 (1) SACR 1
(CC) at para 41