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[2021] ZAGPPHC 5
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Magabe v S (A 546/2016; PA89/2016) [2021] ZAGPPHC 5 (4 January 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED. YES
DATE:
4 JANUARY 2021
CASE NO: A 546/2016
DPP
REF NUMBER: NO. PA89/2016
In the
matter between:
PIET:
MAGABE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
AVVAKOUMIDES AJ and DLAMINI AJ
JUDGEMENT
Because
of the current pandemic, this judgment is handed down electronically.
The case was heard in open court when it was possible
to do so.
Dlamini AJ is the author of the judgment and prepared it himself,
(with which Avvakoumides AJ has concurred). It will
be handed down
electronically by circulation to the parties’ representatives
by way of electronic mail and by uploading it
to the electronic file
of this matter on the electronic application called Caselines. The
date on which this judgment is handed
down shall be deemed to be 4
January 2021.
DLAMINI
AJ
[1]
The appellant was convicted on the 18
th
September 2013 by
the Atteridgeville Regional Court on six counts of rape, each read
with the provision of section 51(1) of the
Criminal Amendment Act,
105 of 1997. He pleaded not guilty to the charges. He was legally
represented throughout the trial. At
the end of the state’s
case, the court
a quo
found him guilty as charged. He was then
sentenced to life imprisonment on each count. He now appeals against
both conviction and
sentence.
[2]
In the court
a quo
the state led evidence of the six
complainants. The appellant testified in his defence and called two
witnesses, namely, his wife
Annie Malatjie and his granddaughter
Mahlako Magabe. This will be dealt with later.
[3]
The complainant in count one, Ms J[....] K[....] S[....] (J[....]),
testified that
the appellant raped her several times during the
period 2010 to 2012. She says the first rape occurred at the
appellant’s
house. She described in detail that the appellant
took off her underwear, he smeared his saliva on her vagina, lowered
his trousers,
inserted his penis into her vagina and proceeded to
rape her.
[4]
The second rape occurred at Thabiso’ father’s house. She
was playing outside
that house with her friend A[....]. The appellant
called her inside the house, he laid her on the bed, he once again
smeared saliva
on her vagina, inserted his penis into her vagina and
raped her. Thereafter he told her to go and call her friend to come
to the
house.
[5]
A further rape occurred when the appellant took her and her friends
to a mountain.
There he placed a plastic sheet on the ground. He told
her to lie down on the plastic. He smeared saliva on her vagina,
inserted
his penis into her vagina and he raped her.
[6]
The last occasion occurred at M[....], her friend’s father’s
shack. There
the appellant called her inside the shack. He laid her
on the bed undressed her and smeared saliva on her vagina, he
inserted his
penis into her vagina, and he raped her.
[7]
She told her sister of what the appellant was doing to her, but her
sister did not
believe her and did nothing about her complaint. She
was cross examined fairly and at length by the appellant’s
legal representative.
In my view nothing of significance came out of
this cross examination.
[8]
Next to testify was Dorothy S[....] (Ms S[....]), J[....] and
Lorina's mother. Sometime
around 8
th
December 2012,
J[....] approached her and told her that the appellant had done
naughty things to her, her sister Lorina and some
of her friends.
J[....] detailed how the appellant on several times raped her. Upon
hearing this she then called Lorina to seek
clarity on these
allegations. Lorina confirmed the rape incidents and explained to her
how these occurred.
[9]
On hearing this from J[....] and Lorina she then approached Mavis,
the mother of A[....],
the complainant in count 4. She together with
Mavis went to the police to lay a charge of rape against the
appellant. Thereafter
she took J[....] and Lorina to the doctor. The
doctor examined them, compiled and completed the J88 form.
[10]
L[....] S[....] (L[....]) was the complainant on count 2. She
testified that on the day, she
was playing with her friend, M[....].
The appellant called her into his bedroom. Inside, he put her on top
of the bed, he took
off her t-shirt and her pants, he took off his
trouser, he put his penis into her vagina, and he raped her. Another
rape incident
occurred at her friend’s Thabiso’s father’s
house. In that house the appellant took off only his trouser. He spat
saliva onto her vagina and his penis. He then inserted his penis into
her vagina and raped her. On another occasion the appellant
also
raped her in the bush. There he put a plastic sheet onto the ground
and ordered her to lie down on the plastic. He took off
her clothes,
inserted his penis inside her vagina and raped her.
[11]
M[....] C[....] M[....] (C[....]), the elder sister of the
complainant, A[....] M[....] testified
and confirmed that A[....]
told her about the incidents in or around 2010 and that the appellant
had done naughty things to her.
However, she did not take A[....]’s
complaint further because she knew that the appellant always talks
about naughty things
like having sex.
[12]
A[....] M[....] (A[....]) was the complainant in count 4. She
testified that she was violated and raped
by the appellant on several
different occasions over a number of years. The first rape occurred
at the appellant’s house
bedroom. He called her into his
bedroom he undressed her, took her panty, he lowered his trousers
took out his penis. He inserted
his penis into her vagina and raped
her. Another rape incident occurred in the bush. The appellant placed
a plastic sheet on the
ground. He asked her to lay on top of the
plastic. He removed her panties, lowered his trousers took out his
penis. He inserted
his penis into her vagina and raped her. The next
incident occurred at her friend’s Thabiso’s father’s
house.
[13] The
appellant called her inside the house. He took off her panties,
smeared saliva into her vagina,
took off his trousers and also
smeared saliva onto his penis. He inserted his penis into her vagina
and proceeded to rape her.
She noted that the appellant had a ring on
his penis.
[14] The
last rape took place at a place which the appellant claimed was his
workplace. There he laid
her on the floor, took off her panties, then
lowered his trouser, he inserted his penis in her vagina and raped
her. She insists
that she told her elder sister, C[....], about the
rapes, but her sister did not believe her and dismissed her. She
confirmed that
during one of the rape incidents, her friend M[....],
walked into appellant’s bedroom and found appellant raping her.
She
was cross examined at length. She stood her ground and insisted
that the rapes occurred to her as she had described them.
[15]
M[....] M[....] (M[....]) was the complainant in count 5. She
testified that she was playing
with her friend R[....], at M[....]’s
place. The appellant called her at the back yard of that house. He
undressed her and
he also undressed himself. He asked her to kneel
down, and he also knelt down. He inserted his penis in her vagina and
raped her.
She never told anyone about this ordeal, and never
reported the rape to anyone.
[16]
K[....] M[....] (K[....]) was the complainant in count 6. She
testified that somewhere around
2009, she was playing with her
friends at the appellant’s house. The appellant called her to
come inside the house. He ordered
her to undress, he also undressed
himself and ordered the complainant to close her eyes. She then felt
something inside her vagina
and he had sex with her. She never saw
the appellant’s penis enter her vagina because her eyes were
closed. She never reported
this incident as she feared her mother
will beat her.
[17]
M[....] S[....] K[....] (M[....]) testified that somewhere around
2010, he was playing with his friends
J[....], L[....] and A[....] at
the appellant’s house. Later that day before sunset, he
realised that his friend A[....]
was still inside the appellant’s
house. He then went to the back of the house to investigate the
delay. He peeped through
the window and saw the appellant on top of
A[....] that he was raping her. He shouted and told the appellant, “
I
found you what ar
e
you doing
.” The appellant shouted
at him. He says A[....] took her clothes and ran away.
[18]
Under cross examination it was put to him, that J[....] testified
that he saw the appellant raping
her through the door. He denies this
and is adamant that he saw the appellant through the open window.
[19]
T[....] M[....] (T[....]) was the complainant in count 3. She
testified that the appellant took
her to the bush with her friends
J[....], A[....] and L[....]. There he ordered her to lie down on her
side. Appellant pulled aside
her panties, he took out his penis on
the side of his underwear, inserted his penis in her vagina and raped
her. On another occasion,
she testified that the appellant raped her
again in his house. There he pulled up her skirt lowered her panty,
he inserted his
penis inside her vagina and raped her.
[20]
Doctor Benjamin Matsotso Paul Senokwane testified that he is a
qualified medical practitioner
who is presently stationed at Laudium
Community Centre. His duties entail mainly medical legal work, such
as completing the J88
forms. He examined all the complainants and
thus confirmed that they were penetrated. Their hymen were torn, and
this was a sign
that the complainants were sexually penetrated. He
was cross examined at length. However, his main evidence remained
unchallenged
and nothing meaningful arose from cross examination.
[21] The
appellant testified in his defence and called his wife Annie Malatjie
and grandchild, Mahlako
Magabe to testify on his behalf. In the main
he denied all the allegations against him although he knows all the
complainants,
he insists that he never raped any of them as the
complainants testified.
[22]
Under cross examination, he could not explain why some of the
complainants knew that he was looking
after M[....]’s house,
the place where the complainants alleged the rapes occurred. Further
he conceded that it was in fact
not true that he was always with his
wife. It turns out he would leave sometimes to do odd jobs, and
sometimes she would be consulting
clients alone as a traditional
healer. He also conceded, that he did not always go with his wife to
dig medication in the mountain.
[23]
Annie Malatje (Ms Malatjie) testified that she is married to the
appellant. She is a traditional
healer. She insists that the
appellant never raped any of the complainants. This is so because she
is always at home and in the
presence of the appellant. She goes and
digs medication in the mountains, the appellant would be present and
assisted her.
[24]
Under cross examination she contradicted the appellant’s
testimony that he was not present
when she was consulting patients as
she needed privacy. Further she insisted that she goes to dig for
medication with the appellant
all the time. The appellant admitted
that sometimes she goes dig for medication alone, or with a certain
aunt Munage.
[25]
Mahlako Magabe testified that she is the grandchild of the appellant.
She admits that some of
the complainants, J[....], L[....] often came
to her place to play with her. She denies that the appellant has ever
sent her to
the shop and she left her friends alone in the yard with
the appellant.
[26]
The onus of proof in a criminal trial case is discharged by the state
if the evidence establishes
the guilt of the accused beyond
reasonable doubt. The corollary is that the accused is entitled to be
acquitted if it is reasonably
possibly true that he might be
innocent. These are not separate tests but an expression of the same
test when viewed from the opposite
perspective. This means that in
order there to be a reasonable possibility that an innocent
explanation of an accused might be
true, there must be at the same
time, a reasonable possibility that the evidence implicating him
might be false or mistaken.
[27]
Author, A Kruger captures it well in his book “
Hiemstra’s
Criminal Procedure”
[1]
.
He says:
“
A
court of appeal must bear in mind that a trial court saw the witness
in person and could assess their demeanour. If there was
no
misdirection of facts by the trial court, the point of departure is
that its conclusions were correct. The court of appeal will
only
reject a trial court’s assessment of evidence if it is
convinced that the assessment is wrong. If the court is in doubt,
the
trial court’s judgment must remain in place (S v Robbinson
1968(1) 666 (A) at 675 H). The court of appeal does not really
look
for the points upon which to contradict the trial court’s
conclusions and the fact that something has not been mentioned
does
not in itself mean that it has been overlooked.”
[28]
A court of appeal must decide the appeal on the facts before it as
contained in the record of
appeal. The obligation is on this court to
establish from the record of appeal, firstly if the court
a quo
assessment of evidence was not wrong. The crux of this case
revolves around the identification of the accused as the one who
raped
the complainants and the appellant’s alibi.
[29]
It is trite that when the identification of an alleged offender is an
issue, everything turns
not only on the honesty of the witness but
his or her reliability as well. This is so because experience has
shown that mistakes
are easily made on identification. The
locus
classicus
when it comes to issues of identity is S v Mthethwa
[2]
where Holmes J warned that “
because
of fallibility of human observation, evidence of identification is
approached by our courts with some great caution.”
[30]
The complainants in this case did not hesitate. They knew and pointed
the appellant as the person
who raped them. They all live within
close proximity from the appellant’s home. They were of the
same age with the appellant’s
granddaughter. They frequently
visited the appellant’s home and played with the appellant’s
grandchild.
[31]
It is thus my view that the court
a
quo
was correct
when it held that the complainants had correctly identified the
appellant as the person that raped them.
[32]
As in this case, I am reminded of the difficulty of the prosecution
of rape cases involving minor
children.
In
S
V VILAKAZI
[3]
“
from
prosecutors it calls for thoughtful preparation, patience and
sensitive presentation of all the available
evidence
and meticulous attention to detail from judicial officers who try
such cases it calls for accurate understanding and careful
analysis
of all the evidence.”
[33]
In this case although the complainants are uncertain of the dates,
they clearly described in
detail how each was raped by the appellant.
They described how the appellant raped them in his home, in the bush,
at M[....] father’s
house, and at Thabani’s father’s
house.
[34]
They detailed how he undressed them, inserted his penis in their
vaginas and raped them. They
fully described the setting of each of
the places that they were raped. They noticed that the appellant had
a ring in his penis.
The complainants in my view corroborated
each other in all the material aspects.
[35]
The court
a
quo
also
held that there was some discrepancy in the evidence of some of the
complainants. On contradiction the court in S v Mkohle
[4]
“
Contradictions
per se do not lead to the rejection of a witnesses’ evidence.
A. Nicolas J observed in S. Oosthuizen
1982 (3 SA 576
TPD at 576 B-C,
they may simply be indicative of an error. And (at 576 G-H) it is
stated that not every error made by a witness
affects his/her
credibility; in each case the trier of facts has to make an
evaluation taking into account such matters as the
nature of the
contradictions, their number of importance and their bearing of the
other parts of the witness’ evidence is
indicative of an
error.”
[36]
The court
a quo
held that because the complainants were
children at the time they were raped, and this happened over a period
it is possible that
there would be contradictions and challenges in
their evidence. Some parts of M[....] M[....]’s evidence were
unclear as
to how the rape occurred. I agree with the court
a
quo’s
finding that the contradictions were not material and
did not affect the credibility of the complainants.
[37]
Furthermore, I am persuaded by the court
a quo’s
findings
that in general the witnesses came across as honest and credible
witnesses. That they did their best to give a credible
account of
what they said happened.
[38]
The complainants’ evidence remained unchallenged and were
corroborated by strong medical
evidence. The medical findings clearly
confirm that the complainants were indeed sexually violated and two
of the complaints had
occurred recently as testified.
[39]
The Appellant’s defence was just a bald and bare denial, and an
alibi. However, it turned
out that the appellant had lied when he
said he was always with his wife the whole day and had no opportunity
to rape the complainants.
His wife lied when she said the appellant
always accompanied her to dig for medication in the bush. The
appellant could not explain
how the complainants knew that he was
looking after M[....]’s house and Thabani’s father’s
house. To evade convictions
the appellant’s wife coached the
appellant’s granddaughter to give testimony on behalf of the
appellant. The court
a quo
correctly rejected the evidence of
the appellant as a fabrication and a desperate attempt to evade
conviction. It follows therefore
that the appeal against the
convictions of the appellant should fail.
[40]
It is trite law that the imposition of sentence is pre-imminently a
matter for the discretion
of the trial court. The court of appeal may
only interfere if the sentence has not been judicially and properly
exercised. In determining
the appropriate sentence regard must be had
to the well-known tried factors, namely the seriousness of the
offence, the offender’s
personal circumstances as well as the
interests of society.
[41]
All the counts that the appellant had been convicted of fall within
the ambit of
Section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
and invite a sentence of life imprisonment, substantial and
compelling circumstances must exist to justify a lesser sentence. The
Act does not stipulate which circumstances must exist to justify a
lesser sentence. Although it is trite that substantial and compelling
factors are ordinarily considered when considering an appropriate
sentence, the minimum sentence may not be departed from for flimsy
reasons.
[42]
In
S
V VILAKAZI
[5]
,
it was held that “
it
is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent upon a court in every
case,
before it imposes a prescribed sentence to assess, upon a
consideration of all the circumstances of the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence. The constitutional court made it clear that
what
is meant by the “offence” in that context consists of all
factors relevant to the nature and seriousness of the
criminal act
itself, as well as all relevant personal and other circumstances
relating to the offender which could have a bearing
on the
seriousness of the offence and the culpability of the offender.”
[43]
In respect of rape of a child, the following was stated by the court
in
S
V HEWITT
[6]
“
Rape
of a child, usually committed by those who believe they can get away
with it and often do is far more horrendous. As was held
in
S
V JANSEN “
it
is as appalling and perverse abuse of male power which strikes a blow
at the very core of our claim to be a civilised society.
It is
unsurprising therefore that society demands the imposition of a harsh
sentence which adequately reflects censure and retribution
upon those
who commit these monstrous offences and to deter would-be offenders.”
[44]
In mitigation of sentence the following personal circumstances of the
appellant where placed
on record. The appellant is 60 years old. He
has several children but could not remember their exact number. He
does occasional
work as a builder. It was argued on his behalf, that
his advanced age and poor health should be considered as substantial
and compelling
circumstance. The court
a quo
did not find any
substantial and compelling circumstances for it to deviate from the
prescribed minimum sentence. I cannot find
any either.
[45]
Rape is brutal no matter how it is committed. The appellant raped six
young girls who were the
same age as his granddaughter. Worse, some
of the complainants he raped repeatedly and some for several years.
There is no reason
whatsoever to interfere with the multiple life
sentences.
[46]
I am satisfied that the court
a quo
considered the evidence,
the circumstances of the commission of the offences, the nature of
the offence and the seriousness thereof,
the interests of society and
the personal circumstances of the accused. It is thus my view that
both the conviction and sentence
on these counts cannot be interfered
with.
[47]
For these reasons I make the following order:
47.1
The appeal against the convictions and
sentences is dismissed. The 6 life sentences are to run concurrently.
47.2
The appellant is found unsuitable to work with children in terms of
subsection (2) (a) of Section 50
of Act 32 of 2007.
47.3
The appellant’s particulars are to be recorded in the register
of sex offenders.
47.4
The appellant is declared unfit to possess a firearm in terms of
Subsection 1 of
Act 60 of 2000.
J. E. DLAMINI
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
agree
G.T.
AVVAKOUMIDES
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
On behalf
of the Appellant:
Adv. A. Thompson
Instructed by:
Legal Aid South Africa, Pretoria Justice Centre
On behalf
of the Respondent:
Adv DWM Broughton
Instructed by:
Director of Public Prosecutions, Gauteng Division: Pretoria
[1]
Pages 30-45
[2]
1972 (3) SA 766
at 768
[3]
2009 (1) SACR 552
(CSA) para 21
[4]
1990 (1) SACR 95
(A) at 98E-F
[5]
2009 (1) SACR 552
(SCA) para 15
[6]
(637/2015)
[2016] ZASCA 100
para 9