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[2021] ZAGPPHC 180
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S.D v S (A108/2020) [2021] ZAGPPHC 180 (23 March 2021)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: A.108/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
29/3/2021
In
the matter between:
S[…]
D[…]
Appellant
and
THE
STATE
Respondent
JUDGMENT
D
S FOURIE, J:
[1] During November 2019
the appellant, a 23 year old male, was convicted on a charge of
raping a female of 14 years old (contravening
section 3 of the
Criminal Law Amendment Act, No 32 of 2007, read with the provisions
of section 51(1) of the Criminal Law Amendment
Act, No 105 of 1997).
On 27 November 2019 the appellant was sentenced to 20 years
imprisonment after the Trial Court had come to
the conclusion that
there were substantial and compelling circumstances justifying the
imposition of a lesser sentence than the
prescribed minimum sentence
of life imprisonment. The appeal is against conviction only.
[2]
It is common cause that the appellant and the complainant had sexual
intercourse on 27 August 2016. According to the appellant
he was
informed by the complainant that on the day in question she was
already 19 years old and that she had consented to sexual
intercourse. This defence was denied by the complainant who testified
that the appellant had forcefully undressed her whereafter
she was
raped.
THE EVIDENCE
[3]
The complainant testified that during August 2016 she was still at
school in Grade 7. She only knew the appellant
"by
sight
"
as she had seen him at a shop, known as Mike's Place.
She later explained that she also knew his name as she could hear
other people
calling him by that name.
[4]
She testified in great detail how she was raped. The appellant had
first strangled her, whereafter he was
"biting my ears".
After she had been raped, the appellant offered to pay her R200.00
"to go to the doctor
".
[5]
In cross-examination she conceded that on the night in question at
approximately 21h00, before the alleged rape, she was sitting
with a
group of men around a fire in the vicinity of Mike's Shop waiting for
a friend by the name of N[…]. It was put to
her that according
to her statement made to the police, the appellant had during the
rape,
"hit
me
with fists on my
face
for several
times
and
I did not
count
how
many
times".
In court she denied that she
was ever hit with fists in her face.
[6]
It was also put to her that according to paragraph 6 of her statement
the appellant had told her
"that
he
loves
me".
When questioned about this statement, she gave the
following explanation:
"...
he
did
say
that
he
loves
me
on
our
way
as
he
was
taking
me
to
Collin's
house
and
I
asked
him
how
do
you
say
you
love
me
whereas
you have
a
wife and
kids".
[7]
The complainant's friend, D[…] also testified. She was
also 14 years old on the night in question. She testified
that the
appellant was known to her as he
"used to stay with Z[..]’s
(complainant)
sister; he
was in
a
love
relationship
with
Z[…]'s
sister
".
Later during the night she came across the complainant who was crying
and said that she had been raped by the appellant. She also
testified
to scratch marks which she had seen on the side of the complainant's
neck and that these scratch marks were still visible
when the police
arrived on the day after the incident.
[8]
A medico-legal examination report (J88) was handed in by agreement as
an exhibit. According to this document the complainant
was examined
the day after she had allegedly been raped. It appears that she was
examined by a medical nurse with a diploma qualification
in general
nursing. The following information appears on this document:
(a)
According to the general examination, no obvious injuries were
noted;
(b)
According to the gynaecological examination, no injuries were
noted, save for multiple clefts, but no fresh tears;
(c)
In the
"history
section
"
it is
indicated that the complainant had already been using contraceptives
and that the date of
"last
intercourse
with
consent"
was 21 August 2016, a few days before she was
allegedly raped;
(d)
Her general body built was described as
"average"
with a height of 1,61 metres and a mass of 47.7 kg.
[9]
The appellant also testified. According to him he saw the complainant
for the first time on the Friday preceding the incident.
The
complainant, the appellant and his friends were seated together and
drinking on the Friday. They agreed to meet each other
at Mike's Shop
the following day. After they met as agreed, they proceeded to
Collin's place where they slept together. He denied
that he had raped
her or that he had applied force as was alleged by the complainant.
After they had slept together, the complainant
demanded R300.00 from
him. He was unable to pay her.
[10]
In cross-examination he conceded that on the day in question he and
the complainant were not involved in a relationship.
According
to him the complainant told him that she was 19 years of age. It was
then put to him by the Prosecutor that the complainant
"still
looked
young
even
today
...
I can
imagine
in
2016
when
she
was
14 years
...
how
did she
look
".
The appellant replied by saying:
"No comments
".
THE CONVICTION
[11]
When considering the evidence one should take into account that the
complainant was a single witness and that she contradicted
herself.
Not all contradictions will lead to the rejection of a witness'
evidence. However, in this case the complainant testified
that she
was never hit in the face with fists , whereas in her police
statement she did give such an explanation. Furthermore ,
according
to the evidence of the second State witness there were scratch marks
on the neck of the complainant. However, no injuries
were noted the
following day when the complainant was medically examined. According
to the medical report it also appears that
at the age of 14 years the
complainant was already sexually active, even before she was
allegedly raped.
[12]
These facts and circumstances should be taken into account when
considering the appellant's defence. It is not necessary for
a Court
to believe the version of an accused. A Court is bound to acquit an
accused if there exists a reasonable possibility that
his evidence
may be true
(S v
Kubeka
1982
(1) SA 534
(W) at 537G). However, it is also important to bear in
mind that a decision to acquit or to convict should take into account
all
the evidence.
[13]
Furthermore, bearing in mind the advantages which a Trial Court has
of seeing, hearing and appraising a witness , the powers
of a Court
of Appeal to interfere with the findings of fact of a Trial Court are
limited
(
S v Francis
1991 (1) SACR 198
(A) at 204c-e). In the absence of a demonstrable and material
misdirection by the Trial Court, its findings of fact are presumed
to
be correct and will only be disregarded if the recorded evidence
shows it to be clearly wrong
(S v Hadebe and Others
1997 (2)
SACR 641
(SCA) at 645). In order to succeed on appeal, the
appellant must therefore convince the Court of Appeal on adequate
grounds
that the Trial Court was wrong in either accepting or
rejecting the witness' evidence
(S
v Latha and Another
1994 (1) SACR 447
(A) at 453).
[14]
In his judgment the Magistrate
"noted a few
contradictions
in the State's case".
He then
concluded that these contradictions are not detrimental
"as
the intercourse is not denied by the accused".
However, the
issue is not intercourse, but whether or not such intercourse took
place by consent. The Trial Court then pointed
out that the witness
D[...] corroborated the evidence of the complainant. Shortly after
the incident D[...] met the complainant
who was crying with her
trouser on her knees and that the appellant offered to pay the
complainant an amount of R200.00 after he
had been confronted with
the alleged rape. It was also emphasised that D[...] corroborated the
evidence of the complainant that
she had been strangled by the
appellant, because D[...] saw visible scratch marks on the
complainant's neck.
[15]
The evidence of the complainant, as well as the evidence
corroborating her version, should not be considered in isolation.
When applying the test of reasonable doubt it should be borne in mind
that a decision to acquit or to convict should take into
account all
the evidence, not only that of the state, but also that of the
accused. In acquitting the accused, it is not necessary
to first
reject the State's case. Even where the accused's explanation is
improbable, the Court is not entitled to convict, unless
it is
satisfied that the explanation of the accused is false beyond a
reasonable doubt.
(R
v Difford
1937 AD
370
at 373).
[16]
When considering the evidence corroborating that of the complainant,
it seems that the Magistrate has failed to take the following
into
account:
(a)
the appellant's offer to pay the complainant R200.00 was to
enable her
"to
go
to the doctor''.
If he had
indeed raped her, he would not encourage her to go and see a doctor,
unless they had consensual intercourse and he knew
that she had
suffered no injuries;
(b)
the medical examination of the complainant which took place
the day after the alleged rape, indicated no injuries, neither
according to- the general examination, nor the gynaecological
examination;
(c)
if she was hit several times with fists in the face and a
scratch mark was visible on her neck, one would have expected the
medical
examiner to have noticed at least some kind of injuries
during the examination.
[17]
The absence of any injuries is an important factor to be
taken into account. It does not corroborate the
complainant's
version, but it may support the appellant's defence. The appellant's
version is that the complainant had consented
to sexual intercourse.
Applying the test in criminal cases properly, there is no reason as
to why the appellant's version should
be rejected as being false.
According to the medico-legal report the complainant was already
sexually active prior to this
incident. There are
various contradictions in the State's case to be taken
into account. The objective
evidence indicates that the complainant
suffered no obvious injuries. The appellant was prepared to pay
R200.00 for her to
go and see a doctor after he was accused of raping
the complainant.
[18]
In my view the Magistrate failed, not only to take into account all
the evidence, but also to apply the objective test in criminal
cases
properly. It also appears that the evidence of the appellant was
rejected without taking into account that the accused bears
no onus.
Taking into account the evidence referred to above, I am of the view
the Trial Court was wrong in rejecting the appellant's
evidence as
false. For the reasons as set out above, I am of the view that the
Magistrate has misdirected himself by not taking
into account that
there is a reasonable possibility that the evidence of the appellant
may be true. As a result the appellant's
conviction and sentence
should be set aside.
[19]
However, this is not the end of this matter. It was submitted by the
appellant's counsel that in the event that his defence
of consensual
sexual intercourse is upheld, the appellant would be guilty of
contravening section 15(1) of Act 32 of 2007 which
is a competent
verdict on a charge of rape in terms of
section 261(1)(a)
of the
Criminal Procedure Act, No 51 of 1977
. Counsel for the State
supported this submission.
[20]
Section 15(1)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
provides as follows:
'
A
person ('A
’)
who
commits
an
act
of
sexual
penetration with
a
child
(‘B’)
who
is 12 years
of
age
or
older
but
under
the
age
of
16 years
is,
despite the
consent of 'B' to the commission of such an act, guilty of the
offence
of
having
committed
an
act
of
consensual
sexual
penetration with
a
child".
[21]
The
Criminal Law Amendment Act No 105 of 1997
does not provide for
any minimum sentence where a person is
convicted of contravening
section 15(1)
of Act 32
of 2007. However , section 56A of the same Act provides that a Court
shall, if a person has been convicted of an offence
in terms of this
Act and a penalty is not prescribed in respect of that offence,
impose a sentence as provided for in
section 276
of the
Criminal
Procedure Act, No 51 of 1977
.
Section 276
of the
Criminal Procedure
Act provides
for a variety of sentences , including imprisonment.
[22]
According to the appellant he was told by the complainant that she
was already 19 years of age, whereas in fact she was only
14 years
old. This is a difference of 5 years in age. According to the
medico-legal report (J88) it appears that the examiner was
aware that
the complainant was only 14 years old. Her general body built is
described as average, obviously for a 14 year old child.
Furthermore,
when it was put to the appellant by the Prosecutor that the
complainant
"still looked young even today"
(three
years later), he did not dispute that observation.
[23]
Taking into account this objective evidence, I am of the view that
the appellant should have realised that the complainant
is not 19
years old, notwithstanding his evidence in this regard. Put
differently, on the day in question he should have realised,
and have
foreseen the possibility, that the complainant was still a child
under the age of 16 years. In the result I am of
the view that
the appellant should have been convicted of contravening
section
15(1)
of Act 32 of 2007 and not of rape. It follows that the sentence
should then also be set aside.
SENTENCE
[24]
Taking into account the evidence as well as the appellant's personal
circumstances, counsel for the appellant suggested that
a sentence of
three years imprisonment, of which half should be suspended on
certain conditions, would be a suitable sentence.
Counsel for the
respondent submitted that a sentence of five years imprisonment will
be an appropriate sentence.
[25]
The appellant is a first offender. He was 23 years old when he was
convicted during November 2019. He completed Grade 10 at
school and
was single. He has two children with different biological mothers. By
their very nature sexual crimes are regarded as
serious, as these
offences are prevalent in our society. The Legislature, reflecting
the social morals of society, enacted legislation
in an attempt to
curb sexual intercourse between adults and children. Children should
be protected, not abused.
[26]
In
S v
Fhetani
2007 (2) SACR 590 (SCA)
the appellant had been convicted in a
regional court of
contravening section 14(1)(a) of the
Sexual Offences Act No 23 of 1957, i.e. having unlawful
intercourse with
a child under the age of 16 years. He was
sentenced to 15 years imprisonment. His appeal was upheld and
the sentence
of 15 years imprisonment was substituted with a sentence
of three years imprisonment.
[27]
In S
v
Sheldon-Lakey
2016 (2) SACR 632
(NWM) the
appellant, a 39 year old married educator had a sexual relationship
with a boy under the age of 16 years who she was
supposed to be
counselling. The appellant in this matter was convicted in a regional
court of having committed an act of consensual
sexual penetration. On
appeal the sentence of four years imprisonment was confirmed.
[28]
Taking into account all the evidence , the relevant facts relating to
the appellant's personal circumstances as well as the
interests of
society and that of the complainant, I am of the view that a sentence
of four years imprisonment would be appropriate
under the
circumstances.
In
the result I make the following o
rder:
1.
The appeal against conviction is upheld and the conviction of
rape is set aside and substituted with the following:
"The
accused is convicted, in terms of section
15(1) of Act 32 of
2007, of
the offence of having committed
an act of
consensual
sexual penetration with a child".
2.
The sentence of 20 (twenty) years
imprisonment is set aside and
substituted
with the following:
"The
accused is sentenced
to 4 (four) years imprisonment
".
3.
In terms of
section 282
of the
Criminal Procedure Act, No 51
of 1977
, the sentence is ante-dated to 27 November 2019.
4.
The order made by the Trial Court that the
accused
(appellant) is declared unfit to possess
a licensed firearm and that his name be entered
into
the register of sexual offenders, remains unaffected.
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
I
agree,
D
PICK
ACTING
JUDGE OF THE HIGH COURT
PRETORIA