Ralile v S (A17/2020) [2021] ZAFSHC 7 (6 January 2021)

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[2021] ZAFSHC 7
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Ralile v S (A17/2020) [2021] ZAFSHC 7 (6 January 2021)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A17 /2020
LERATO
RONALD
RALILE
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
ADJP, et NAIDOO, J et REINDERS, J
JUDGEMENT
BY:
MBHELE
,
ADJP
HEARD
ON:
15
SEPTEMBER 2020
DELIVERED
ON:
06 JANUARY
2021
[1]
The
appellant
was convicted by the Regional Magistrate, Bloemfontein, of raping the
complainant more than once, whilst she was 9 years
old, and sentenced
to 10 years imprisonment. He appeals against conviction and sentence.
The appellant’s mother (accused 2) was
charged alongside the
appellant for failure to report to a police official knowledge that
rape was committed against the complainant.
[2]
The offences are alleged to have happened during the year 2014. The
background facts are as follows.
The appellant is the complainant’s
cousin. The complainant and the appellant lived in the same house
together with accused 2. She
stayed with the appellant and his mother
since she was a baby. Her mother’s whereabouts are not known.
[3]
The complainant testified that one afternoon while she was playing
outside the appellant called
her into the house. The appellant
instructed her to take off her clothes to which she obliged because
she respected him as her brother.
The appellant, further, instructed
her to climb on top of a bed where after he climbed on top of her,
inserted his penis in her vagina
and started doing up and down
movements. He thereafter instructed her to leave the room after
telling her not to tell anyone about
what happened.
[4]
Two days later the complainant was at home with the appellant and
accused 2. Accused left
the house to visit her friend at a nearby
tavern while the complainant went outside to play. The appellant who
had remained in the
house called the complainant into the house. He
again instructed her to take her clothes off and lie on top of the
bed. The appellant
then climbed on top of the complainant, inserted
his penis in her vagina and made up and down movements. She felt pain
and tried
to scream but the appellant put his hand across her mouth
to block the sound from coming out.  The appellant instructed
her
not to tell anyone about the incident and threatened to kill or
assault her should she divulge it to anyone.
[5]
When accused 2 came back home the complainant reported to her what
happened while she was away.
The appellant was not in the room when
the complainant made the report to accused 2. The report was made
while the complainant and
accused were in the TV room and the
appellant in the kitchen.  Accused called the appellant and
asked him if what the complainant
told her was the truth but the
appellant denied it. Accused 2 then took a wooden spoon and hit the
appellant with it on his head.
The appellant ran out and never came
back home until the complainant went to sleep that evening. Accused
then left the house to go
to Palesa Khumalo who owns a tavern in
their neighbourhood.
[6]
When Accused 2 came back from the tavern she told the complainant not
to sleep with the appellant
in the same room that evening. The
complainant was instructed to make a bed in the kitchen on the floor.
The following day the complainant
went to school where she was later
fetched and taken to police station. She was with Palesa at the
police station. She was then removed
from accused 2 ‘s house and
taken to a place of safety.
[7]
Palesa, testified that on 18 May 2014 the appellant’s mother came
to her at Sekimo’s house and reported
that she found the appellant
raping the complainant. This she said after she made a remark that
she has always been telling Palesa
that the complainant was naughty.
When Palesa asked her what she planned to do with the information at
her disposal she told her
that she would go to the police and report
the matter which she did not do. Palesa went to the complainant’s
school with an intention
to discuss the complainant’s academic
progress with her teacher and to further report that she has heard
news that the complainant
was raped.
[8]
When she could not meet with the complainant ‘s teacher whom she
was told was busy she decided
to go to the police to report the
matter. The complainant was then fetched from her school to the
police station. She was asked to
accompany her to the doctor for
examination. She did not receive any report from the complainant
about the incident nor did she meet
with the complainant before the
charges could be laid. She met the complainant for the first time at
the police station after she
had already reported the matter. She
reported the matter to the police because she was concerned as a
resident. During consultation
with the doctor the complainant
demonstrated with anatomic dolls how she was raped.
[9]
The complainant was examined by Dr Kotze in the presence of Palesa.
She did not find visible
injuries on the complainant’s genitalia
but she did not rule out sexual abuse. Upon enquiry she was informed
by the complainant
that her brother (O[....]) did something bad to
her. She demonstrated by putting a male doll on top of the female
doll lying facing
each other. She attributed absence of injuries in
the complainant’s genitalia to her young age. She explained that
children at
the complainant’s age enjoy good supply of blood into
their genitals which improves elasticity and makes it resilient to
injuries.
[10]
The appellant testified and denied allegations against him. Accused 2
also denied knowledge of any rape incident
committed by the appellant
against the complainant. According to her the probable motive behind
the charge against her and the appellant
is that the relations
between her and Palesa had soured and they were not on talking terms.
She however admits that she went to complain
to Palesa that the
complainant was naughty and had tendencies of staying away from home
until late at night.
[11]
In his notice of appeal, the appellant contended that the court a
quo
erred in finding that the state has proved its case beyond reasonable
doubt despite material contradictions in the state’s case
and
rejecting the evidence of the appellant.
[12]
The trial court evaluated the evidence and came to the conclusion
that the State witnesses were truthful and
rejected the version of
the appellant as improbable. It is trite that factual and credibility
findings of the trial court are presumed
to be correct unless they
are shown to be wrong with reference to recorded evidence. The
acceptance by the trial court of oral evidence
and conclusions
thereon are presumed to be correct, absent misdirection. (See
S
v Francis
1991 (1) SACR
198
SCA at 204 e-d.) A court of appeal may only interfere where it is
satisfied that the trial court misdirected itself or where it is
convinced that the trial court was wrong. (See
R
v
Dhlumayo
&
another
1948
(2) SA 677
(A) at 705-706).
[13]
It
is well established that,
where a trial court makes findings on credibility of a witness, the
court of appeal will take into account
that the trial court had the
advantage of seeing the witnesses give their oral evidence, which is
not available to the court of appeal.
The
powers to evaluate and appraise evidence belong to a trial court and
its conclusions cannot be interfered with simply because
a court of
appeal would have come to a different finding or conclusion. The
trial court’s advantage of seeing and hearing witnesses
places it
in a better position to assess the evidence than a court of appeal,
and  such assessment must  take precedence
unless there is
clear and demonstrable misdirection.
T
he
Supreme Court of Appeal held as follows in
S
v Pistorius
2014 (2) SACR 315
(SCA) par
30
:
'It is a
time-honoured principle that once a trial court has made credibility
findings, an appeal court should be deferential and
slow to interfere
therewith unless it is convinced on a conspectus of the evidence that
the trial court was clearly wrong. R v Dhlumayo
and Another
1948
(2) SA 677
(A) at 706; S v Kebana
2010 (1) All SA 310
(SCA)
para 12.' As the saying goes, he
was
steeped in the atmosphere of the trial. Absent any positive finding
that he was wrong, this court is not at liberty to interfere
with his
findings.’
[14]
It is trite that the
State
must prove its case beyond reasonable doubt. Ms. Kruger, on behalf of
the appellant, submitted that the contradictions in the
State’s
case were so glaring and material that they warranted a total
rejection of the State’s case. She contended, further,
that the
complainant was a single witness whose evidence had to be approached
with caution.
[15]
Contradictions
must be material to warrant rejection of a witness’ evidence.
The court must after
evaluating all evidence be satisfied that the truth has been told.
In dealing with contradictions the following
was said in
Mkohle
1990 (1) SACR 95
(A)
:
“
Contradictions
per se do not lead to the rejection of a witness’ evidence, they
may simply be indicative of an error”.
[16]
In
State vs Oosthuizen
1982
(3) SA  571 (T)
from
page 576       paragraph G to H it was
held:
“
Not
every error made by a witness affects his credibility, in each case
the trier of fact has to take into account such matters as
the nature
of the contradictions, their number and importance and their bearing
on other parts of witness’ s evidence”.
[17]
Application of caution is necessary in assisting the court to
decide    whether the guilt of the accused
has been
established beyond reasonable doubt. It has been established that the
application of caution must not be allowed to displace
the exercise
of common sense.
In
S v
Sauls and Others 1981 (3) SA172 (A
)
the appellate division stipulates it clearly that:
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness...The
trial
Judge will weigh his evidence, will consider its merits and demerits
and, having done so will decide whether it is trustworthy
and whether
despite the fact that there are shortcomings or defects or
contradictions in his testimony, he is satisfied that the
truth has
been told. The cautionary rule ... may be a guide to a right decision
but it does not mean 'that the appeal must succeed
if any criticism,
however slender, of the witnesses' evidence were well founded... It
has been said more than once that the exercise
of caution must not be
allowed to displace the exercise of common sense."
[18]
Although Dr. Kotze denied that the complainant told her explicitly
that the appellant had sexual intercourse
with her as testified by
the complainant and Palesa, she did mention that the complainant told
her that her brother (O[....]) did
bad things to her and demonstrated
the said things through two anatomical dolls, with a female doll
lying on its back while the male
one was on top and facing each
other.
[19]
The complainant’s version is supported by that of Palesa. Palesa
and the complainant never met to discuss
this matter until a charge
was laid with the police. The complainant and Palesa’s account of
events is clear and it does not show
that they colluded to falsely
implicate the appellant and his mother.
[20]
I am unable to find any demonstrable or clear error on
the part of the trial court to justify interference
with its
credibility findings. The trial court was correct in its assessment
of evidence and credibility findings. I cannot find
that the trial
court erred in finding that the appellant and his co- accused’s
version is   inherently improbable and
fell to be rejected.
[21]
The sentencing powers are pre-eminently within the judicial
discretion of the trial court; the court of appeal
should be careful
not to erode such discretion. The court sitting on appeal will
interfere if the sentencing court exercised its
discretion
unreasonably or in circumstances where the sentence is adversely
disproportionate. See
S
v Rabie
1975 (4) SA 855
(A) AT 857 D-E also S
v
De Jager and Another
1965
(2) SA 616
(A)
[22]
When sentencing, the court must consider the main
objectives of punishment, being the prevention of
crime, retribution,
the deterrence of criminals, and the reformation of the offender.
Simultaneously, the court must strike a balance
between the crime,
the offender and the interest of society.
[23]
In
S
v Mudau 2013 JDR 0938 (SCA)
para
13
.
Madjiet
JA, as he then was, remarked as follows:
“
I
hasten to add that it is trite that each case must be decided on its
own merits. It is also self-evident that sentence must always
be
individualised, for punishment must always fit the crime, the
criminal and the circumstances of the case. It is equally important
to remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and upon a careful consideration
of all relevant factors. Public sentiment cannot be ignored, but it
can never be permitted to displace the careful judgment and fine
balancing that is involved at arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence which
is
just and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests
of
society. Sentencing involves a very high degree of responsibility
which should be carried out with equanimity. . .”
[24]
The offence committed by the appellant is
undoubtedly a serious     one. The complainant
grew up in front of the appellant and considered him as her brother.
The complainant trusted him and he, in turn, took advantage
of her
fragile state.
The
complainant was violated in the sanctity of her own home. A place she
considered her sanctuary and was supposed to feel safe at.
[25]    The
fact that the Constitution regards a child’s best interests as of
paramount
importance must be emphasized. It is the single most important factor
to be considered when balancing or weighing competing
rights and
interests concerning children. All competing rights must defer to the
rights of children unless unjustifiable. Whilst
children have a right
to inter alia, protection from maltreatment, neglect, abuse or
degradation, there is a reciprocal duty to afford
them such
protection. Such a duty falls not only on law enforcement agencies
but also on right thinking people and, ultimately the
court, which is
the upper guardian of all children. See
De
Reuck v DPP WLD
2003 (1) SACR 448
(WLD) at 457 par 10
[26]
In
S
v
Abrahams
2002 (1) SACR 116
(SCA) Cameron JA
remarked
as follows with regards to sexual violation of minor children in the
domestic sphere.
“
of
all the grievous violations of the family bond the case manifests,
this is the most complex, since a parent, including a father,
is
indeed in a position of authority and command over a daughter. But it
is a position to be exercised with reverence, in a daughter’s
best
interests, and for her flowering as a human being. For a father to
abuse that position to obtain forced sexual access to his
daughter’s
body constitutes a deflowering in the most grievous and brutal
sense.”
[27]
It is clear from the above dicta that the rape of
minor children must be viewed in a serious light,
worse
if committed by those entrusted with the care and safety of the
child. Home is supposed to be a place where children are cared
for
and protected. S
exual
abuse in
the
domestic
sphere is not the type that victims can easily escape from. It
thrives on intimidation and blackmail. The victims have to
live with
their predator, see them every day and disguise their pain. It is
apparent that the appellant would have continued with
his criminal
conduct had Palesa not blown the whistle on time.
[28]
Sexual violence against children evokes
communities’ indignation and often prompts them to resort to
self-help
to keep their children safe. The courts are the last hope
for the tormented society.
[29]
The appellant was 16 at the time of the commission
of the offence and 21 years old during sentencing. The
court found
that section 51 of the Act 105 of 1997 does not find application for
the purpose of sentencing. He was a first offender,
single, with no
children and went to school up to grade 9.  He was employed
earning R450 per week. He was a minor during the
commission of the
offence.
[30]
It is so that sentence must be tailored to suit the offender, the
crime and the circumstances surrounding the
case. As stated
supra
,
punishment must be proportionate to the offence. Although the
appellant was a minor he brutally took away the innocence of a young
child. The offence calls for a lengthy jail sentence.
[31]
When weighing up the mitigating factors against the aggravating
circumstances, this matter as well as the
interest of community, I am
not persuaded that there is a just cause to interfere with the
sentence imposed by the trial court.
The appeal ought to fail.
ORDER
[32]
The following order is made:
1.
The appeal against conviction and sentence is dismissed;
2.
The
conviction and sentence are confirmed.
N.M. MBHELE, ADJP
I concur
S. NAIDOO, J
I concur
C. REINDERS, J
On
behalf of the appellant:
Ms. S Kruger
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. Straus
Instructed by:
Director: Public
Prosecution
BLOEMFONTEIN