About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2021
>>
[2021] ZANCHC 14
|
|
Dorrepaal v S (CA&R26/2020) [2021] ZANCHC 14 (12 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
CA&R26/2020
Heard on: 23
November 2020
Delivered on: 12
March 2021
In
the matter between:
RUDOLPH
KOERT
DORREPAAL
Appellant
and
THE
STATE
Respondent
Coram:
Phatshoane ADJP
et
Chwaro AJ
JUDGMENT
THE
COURT
Introduction
[1]
The appellant, aged 56,
and his spouse, Ms MD, aged 43, were married to each other in 2008.
They were arraigned before the Regional
Court Magistrate, Ms A I
Venter, in the Regional Court held at De Aar, Northern Cape, on seven
and eight counts, respectively,
relating to sexual assault and rape
on a minor child, NG, Ms MD’s eight year old daughter and the
appellant’s stepdaughter.
[2]
Following a trial which
ran intermittently from 03 October 2011 to 28 July 2017 the appellant
was convicted on 28 July 2017 on four
of the seven counts and
sentenced on the same date to life imprisonment in respect of Counts
3 and 4, three years’ imprisonment
on Count 2 and four years’
imprisonment on Count
6. In
terms of section 309 (1)(a)(ii) of the Criminal
Procedure Act, 51 of 1977 (the CPA), read with sections 10, 11 and
43(2) of
the Judicial Matters Amendment Act, 42 of 2013, an appellant
has an automatic right of appeal to this court against both his
convictions
and sentence. This appeal is on that basis.
[3]
Ms MD faced Count 8 alone. Count 7 is that of defeating and/or
obstructing the ends of justice in that
Ms MD is said to have removed
documents from the appellant’s clinic file which showed that he
was HIV positive. On Count
8 she was accused of having failed to
report the sexual offences against the minor to a police official as
envisaged in s 54(1)(a)
of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007 (“the Sexual
Offences Act”). She
was acquitted on all counts save Count 7
for which she was convicted of an attempt at defeating or obstructing
the ends of justice
and Count 8 in respect of which she was found
guilty as charged. She was sentenced to three and two years
imprisonment, respectively.
She did not appeal.
[4]
A summary of the charges preferred against the appellant, upon which
he was convicted and sentenced,
is substantially the following:
4.1
In respect of Count 2, he stood accused of indecent assault in that
during the period 2006 to 15 December
2007 at or near Petrusville,
Northern Cape, he unlawfully and intentionally indecently assaulted
the seven year old girl, NG, by
touching/fondling her genitalia and
at times penetrated her genitalia with his finger;
4.2
On Count 3, he was accused of rape in that he contravened section 3
read with sections 1, 56(1), 57, 58, 59,
60 and 61 of the Sexual
Offences Act, also read with the provisions of sections 51, 52 and 53
of the Criminal Law Amendment Act,
105 of 1997 (“the Minimum
Sentence Act”), in that between 16 December 2007 and November
2010 at Petrusville, he committed
an act of sexual penetration
(vaginal) on NG, now eight years old girl, with his finger;
4.3
On Count 4, the State accused him of rape, the only difference being
that between the 16 December 2007 and
2010 at Petrusville, he
committed the act of sexual penetration (vaginal) on NG, the eight
years old girl, with his penis.
4.5
On Count 6, the State’s case was that he was guilty of
contravening the provisions of section 5(1) read
with sections 1, 56,
57, 58, 59, 60 and 61 as well as Chapters 2, 3 and 4 of the Sexual
Offences Act in that during the period
16 December 2007 until
November 2010 at Petrusville, he sexually assaulted NG, by forcing
her to masturbate him.
[5]
The general drift of the appellant’s case is that he was not
the perpetrator. He submits that
NG (“the complainant”)
and her brother were influenced to implicate him falsely. He further
contends that the trial
court failed to apply the necessary caution
relating to a child witness when assessing the evidence of the
complainant. He also
argued that the trial court did not properly
evaluate the evidence of Dr Liebenberg, who examined the complainant,
following the
alleged sexual abuse.
The factual
matrix in the case presented by the State
[6]
The complainant was 13 years old when she took the stand. She has a
brother, F, who is three years younger
than her. Ms MD is their
mother and the appellant their stepfather. During the relevant
periods, as specified in the charge
sheet, she and her brother lived
with their grandparents in Orania during the weekdays and would visit
their parents in Petrusville
over the weekends. This stopped after
the complainant had reported the sexual abuse to her aunt, Ms LvS.
[7]
The complainant explained the sexual abuse as follows. She was sick
and lying on her mother’s
bed watching TV. The appellant, Papa
Koert, came to lie next to her and put his hand in her pyjama pants.
He touched her private
part and cautioned her not to tell anyone of
the act. At night times, when her mother was asleep because she took
sleeping tablets,
Koert would climb on her bed, lie behind her, tell
her to open her legs and would touch her private part. At times he
would rub
and fondle her vagina with “something hard”
from behind. Many times he tried to penetrate her anally with his
penis
from behind.
[8]
On one occasion, when watching TV with her parents on their bed, her
mother fell asleep. The complainant
was lying next to Koert. He took
her hand and ask her to caress his penis. He ejaculated in her hand.
She does not know whether
there was a stage where Koert had attempted
penile penetration through her vagina. She intimated that in the
course of the molestation
that went on for years she would cry and
ask her abuser to stop but to no avail. She reported to her brother F
that the appellant
molested her. He immediately wanted to inform Ms
MD of the abuse. The complainant barred him from doing so because
their parents
would always fight and she was scared there would be
another fall-out.
[9]
The complainant says she once played a game called “
plaas
plaas
” with her hyperactive little cousin, H. He stumbled
and missed touching her arm but touched her private part “
hy
het net aan [sy geslagsdeel] geraak
”. She told Ms MD of
this incident. Her mother asked her to draw pictures of H touching
her private part and to pen letters
which portrayed H as the
aggressor and the appellant as caring person. Ms MD warned the
complainant to keep her husband as long
as possible out of jail and
told her what to write down. One of the undated letters written
following the appellant’s arrest
reads:
“
H…het
aan my koekie gevat. Dit was nie lekker nie. Papa Koert het dit nie
gedoen nie. Hy is ‘n goeie mens. H..
het dit baie gedoen
en ek het gehuil. Hy het sy vinger in my gedruk en ek wil nie weer
hieroor praat nie en ek wil nie weer doktor
toe gaan nie. Ek wil hê
dat [ek en]
my papa kan vriende wees. Ek wil hê
dat
my papa Koert terugkom”.
[10] The
complainant says she also reported to Ms MD that Koert
inappropriately touched her. Ms MD became funny and
cried but she was
also happy because she thought it was only H who touched her
inappropriately.
[11] F
was 10 years old when he testified. He confirmed that the complainant
told him that the appellant touched her
private part (“
het
sy vertel oom Koert karring by haar verkeerde plekkie
”). He
further confirmed that he was eager to tell Ms MD but the complainant
prevented him from doing so because she would
yell at them. He
further testified that after the appellant was arrested, their mother
took them along to visit him at the police
holding cells, where he
told F and the complainant to implicate their eight years old cousin,
H, as nothing would happen to H.
[12] F
says Ms MD promised to give them Christmas gifts in recompense if
they implicate H. She also requested him to
leave the room when she
asked his sister to draw pictures and write the letters already
referred to. F intimated that the first
statement that he made to the
police, in which he implicated H, was untruthful. He attested to the
statement in the manner that
he did because Ms MD indoctrinated them
to say that H was the culprit. It dawned on him to tell the truth
because he could no longer
endure telling lies. He never observed H
or the appellant inappropriately touching the complainant.
[13] Ms
LvS is Ms MD’s sister. On Thursday 18 November 2010 at
approximately 14h00 she was helping the complainant
to prepare for
her school examination and would ask her questions which she
struggled to answer. She was not herself, was unhappy
and tense.
Ordinarily, the complainant would make jokes and engage in a
discussion but on the day in question her concentration
was
elsewhere. She enquired from the complainant what bothered her. She
replied that she did not want to move to Pofadder with
her parents.
In the course of persuading her to relocate the complainant informed
her: “he [the appellant] was going to do
it again”. The
complainant revealed that the appellant touched her “number one
place (
nommer 1 plekkie/verkeerde plekkie
) during weekends and
should she relocate with her parents, he would do it every day. The
complainant was very emotional.
[14] Ms
LvS discussed the revelation by the complainant with her other
sister, PD, and her parents. They all visited
a local pastoral
counsellor, Mr Omar Fourie, who advised that they call the police or
communicate with Ms MD and request her to
handle the matter as it
involved her children. Ms LvS did not have a good relationship
with Ms MD, therefore, on the next
day her mother and sister PD
visited Ms MD to inform her of the abuse. F and the complainant
returned home. Ms LvS says that a
few days later she reported the
abuse at Hopetown Police Station.
[15] Ms
LvS says it came out during the investigation of the incidents in
issue that her son H, who was eight years
old and three years younger
than the complainant, was implicated of having improperly touched the
complainant. She was dumbfounded
but dismissed the allegation as
absurd.
[16] Dr
J A Liebenberg examined the complainant on 29 November 2010 at 16h45
in the presence of Ms MD and completed
the J88 medical report, which
was handed in evidence by consent. The doctor observed that the
complainant’s hymenal diameter
was 7,1 mm which in his opinion
was indicative of sexual molestation. The hymenal diameter beyond 4mm
is synonymous with molestation
or vaginal-hymenal injury. 90% of the
children in the age group of the complainant would have a hymenal
diameter of 4mm. 10% will
have hymenal diameter between 4 mm and 5
mm. However, a diameter of 7.1 mm is associated with molestation
unless the child had
been subjected to serious abdominal injuries
which her parents would know about because she would have required
medical attention.
The doctor intimated that a hymenal diameter of
7.1 mm is rarely found. His last encounter with this was in a case
where the victim
had been raped. He rejected any suggestion that a
penetration by a finger of an eight years old boy could have caused
the hymenal
diameter of 7.1 mm. The doctor was of the view that the
object that would have caused this type of an injury would have had a
diameter
of approximately 20 mm. The doctor could not determine what
object was used to penetrate the complainant.
[17] The
doctor further found that the complainant’s perineum was red
and that there were old hymenal injuries
or tears at a 6 o’clock
and 11 o’clock position. At that stage, there were no signs
that the molestation took place
24 hours preceding the examination.
He concluded that there had been vaginal penetration past the hymen,
which occurred more than
once and on several occasions.
[18] The
doctor recommended that a child psychologist be engaged because Ms MD
made the examination very difficult.
He found it hard to communicate
with the complainant so as to establish her medical history because
her mother responded to questions
on her behalf and took over the
examination. He described Ms MD as someone antagonistic towards him
and uncooperative. He testified:
“
Aanklaer:
So wat as u nou vir ons ‘n
voorbeeld…(tussenkoms)====Byvoordeeld het iemand vir jou hier
seer gemaak. Nee,
niemand het jou nog seer gemaak nie nê.
Daardie klas van ding, met ander woorde dit maak dit baie moeilik vir
my. Daar is
een vraag wat ek baie sterk kan onthou wat dit moeilik
gemaak het en dan het die ma deurlopend wanneer ek vrae vra het het
sy die
vrae geantwoord en sy was aggressief gewees in haar manier hoe
sy antwoord.”
[19]
Ms Dornè Sue-Ann Wentley is a social worker who compiled the
victim impact report on 05 January 2011 regarding
the complainant.
[1]
She recorded that the complainant suffered from anxiety as she was
uncertain how her case would affect her family. She testified
that Ms
MD was opposed to the assessment of her children, in particular, she
refused that a forensic social worker, Cpt Ursula
Hildegard Spies,
interview the complainant and threatened that she had an attorney. Ms
Wentley made contact with Magistrate Muller,
a commissioner of child
welfare, Petrusville, who ordered that the complainant and her
brother be removed from the care of their
mother on 03 December 2010
because she influenced them not to be assessed. The complainant did
not disclose to Ms Wentley who her
assailant was.
[20]
Cpt Spies, a forensic social worker in the employ of the SAPS, had
three sessions with the complainant and F on
06 and 17 December 2010
and 07 January 2011. She compiled a report which was handed in
evidence without any objection.
[2]
She confirmed that prior to the three sessions Ms MD protested that
her child be assessed in the absence of a legal representative
and in
fact brought one with to a session. She explained to the attorney
concerned to bring an application in court for an order
that he be
allowed to be present during the sessions albeit through some type of
a two-way mirror/video conferencing facility.
The attorney concerned
promised to revert but never did.
[21] Cpt
Spies says during the first session the complainant stated that H was
the only aggressor who touched her private
part. On 17 December
2010, the second session, when the social worker probed to clarify
the information obtained from the
first session, the complainant was
anxious to know whether her mother would be enlightened of the
session and was therefore unwilling
to talk. However, she told
Cpt Spies that it was both H and the appellant who violated her.
The complainant went on
to substantially relate the version she
already placed before court, in respect of the sexually offensive
acts that the appellant
perpetrated against her, to Cpt Spies. The
Captain intimated that one of the sensoric information obtained by
the complainant from
the abuser was her knowledge of his voice albeit
the offensive acts were committed in darkness. Cpt Spies says the
complainant
did not give any further information regarding H on that
specific day.
[22] In
the last session of 07 January 2011 the complainant was once more
concerned with what would happen to her mother
if she were to tell
the truth. She told the captain that it was only the appellant that
improperly touched her
: “Once at the back sometimes in
front…I don’t know what he used; it was painful. Now and
then I felt that he
had not put his pants on. It happened many times.
I said it was H I was afraid my mom would do something…My mom
loves Koert.
Mom said we will sit in the streets if we lose Koert.
She said her house, car and everything will be taken away if [Koert]
is locked-up...”
(translated).
[23] In
Cpt Spies’ professional opinion what Ms MD said to the
complainant was manipulative and had a negative
influence on her. The
complainant was scared of her mother if she shared information. The
impact of the influence would result
in the child being initially
untruthful when he/she relates the events but at times he/she would
tell the truth. She further assessed
the complainant’s brother
who, during the first two sessions, also implicated H. On a follow up
session he recanted. He informed
Cpt Spies that his earlier version,
in which he accused H, was on account of his mother’s
influence.
The
appellant’s version:
[24]
Following an unsuccessful attempt for his discharge in terms of s 174
of the CPA the appellant took the stand.
He had been living with HIV
for several years before the incidents in issue. He came to
know the complainant and her brother
about 2005 and 2006 when he
started dating their mother. His relationship with the children
was cordial from the onset but
they saw him as a bystander because
they had their biological father. They became receptive to him as
part of their family in a
period of about six months to a year
because he availed himself as their father.
[25] He
was arrested on the morning of 28 November 2010 in connection with
the offences in issue. Ms MD and the children
visited him in prison
because the children were restless and could not sleep as he was not
at home during that evening. He denied
ever committing any of the
offences with which he was charged. In respect of Count 6,
sexual assault in that he requested
the complainant to assist him to
masturbate, he intimated that the evidence adduced by the State did
not make any sense to him.
Over the years Ms MD’s family
accused him of similar offences with no end in sight. He says that
there were always subversive
plans within that family to find a
reason to take the children away from his wife. Ms MD was stressed as
a result of the harassment
her family put her through. It did not
dawn upon him and his wife to take the complainant for medical
examination to dispel the
allegations that he molested her. They
considered the claims to be frivolous. He denied that he and his wife
tried to conceal the
complainant’s abuse. He also refuted
having influenced the complainant and her brother in any manner
whatsoever.
[26] Ms
MD testified in her own defence. She says her family disapproved of
her relationship with the appellant. The
allegations that he molested
the complainant surfaced in 2006 when he really had no contact with
the children. In light of these
allegations, when they were resident
in Kenhardt, she sought advice from a priest and a social worker. She
did not take the complainant
for medical examination because she was
advised that it was unnecessary and it never occurred to her to do
so. In any event, the
complainant did not give her any impression
that she needed that form of examination. In all instances where the
family made an
allegation against the appellant she would discuss
this with the complainant and would thereafter invite the appellant
into their
discussion. Insofar as the present allegations are
concerned she remained committed to the appellant because the
complainant told
her in one of their openhearted discussions that it
was H that violated her.
[27] Ms
MD confirmed that her relationship with Ms LvS was not cordial. On
the weekend in which the complainant disclosed
to Ms LvS that the
appellant violated her the complainant was sad. The complainant
informed her that she was afraid of Ms LvS;
she did not want to
return to Orania where they resided during weekdays and that H hurt
her. The complainant accused the
appellant of the offences
because Ms LvS exerted influence upon her to do so. She says W/O
Samole Coetzee also told the complainant
that it could only have been
an adult that was the perpetrator. Ms MD also blamed the
complainant’s grandparents and the
Department of Social
Development Officials, in particular, Ms Wentley, of exerting
pressure upon her children to implicate the
appellant falsely. She
says insofar as the complainant testified that she made her say or do
certain things, such as drawing pictures
and writing letters, which
sought to exonerate the appellant, she lied but could not say why the
complainant would do so.
[28] Ms
MD confirmed that she and her children visited the appellant in
prison following his arrest. The appellant persuaded
the complainant
to visit a doctor. She agreed. Ms MD denied having been obstructive
during the complainant’s consultation
with the doctor. She
intimated that the complainant did not inform her of her abuse at the
hands of the appellant and she did not
hold the metaphoric
candle when the offences were allegedly committed.
Ad conviction:
[29]
It is trite that the State bears the onus to prove its case beyond a
reasonable doubt. The court can convict
on the evidence of a
single witness provided it is satisfactory in every material
respects
[3]
. In
Y
v S
[4]
the court pronounced:
‘
Proof
beyond reasonable doubt can only be met where reliable evidence sets
out coherently the event(s) on which a charge is founded.
The
version that emerges at the end of the State case must be
sufficiently coherent to avoid conflict with the constitutional
rights guaranteed to every person charged with a criminal offence.
And while the compound effect of imperfections in a child’s
recollection and communication faculties, together with the possible
trauma of sexual violence must be taken into account in the
evaluation of the evidence in sexual assault cases, these factors do
not justify discarding the set standard of proof for conviction.
An accused’s constitutional rights both in relation to fair
trial procedures as well as to a just result cannot be discarded.’
[30]
The above salutary principle must be applied, in cases of child
witnesses in sexual assault cases, in conformity
with what the
Constitutional Court enunciated in
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
[5]
as follows:
“
If
the cross-examination is conducted by the legal representative, the
child will be taken through his or her evidence in the most
minute
detail. The cross-examination may bring out facts that were so
grotesque that the child could never have imagined
being forced to
recount them. The child will be taken to task for placing
events, often months after they had occurred, out
of sequence and for
not being able to remember important details concerning the events.
In this intimidating and bewildering atmosphere,
the child
complainant is required to relive and reveal sordid details of the
horror that he or she went through.
Those
who know more about child behaviour from a professional point of view
tell us that children are reluctant to relate their
sad and often
sordid experiences to several different people. As a result,
repetition tends to heighten their sense of shame
and guilt at what
happened to them.”
[31]
In assessing the evidence of a child witness, a trial court is
expected to determine whether such evidence is trustworthy
on the
basis of the
child's
mental capacity to observe an event; the child's capacity to remember
the event about which he or she has to testify; the
child's capacity
to communicate about the event and the child's possession of
sufficient intelligence to appreciate the obligation
to speak the
truth.
In
Woji
v Santam Insurance Co Ltd
[6]
the court explained this approach in the following manner:
“
The
question which the trial Court must ask itself is whether the
young witness' evidence is trustworthy. Trustworthiness,
as is
pointed out by Wigmore in his Code of Evidence para 568 at 128,
depends on factors such as the child's power of observation,
his
power of recollection, and his power of narration on the specific
matter to be testified. In each instance the capacity
of the
particular child is to be investigated. His capacity of
observation will depend on whether he appears "intelligent
enough to observe". Whether he has the capacity of
recollection will depend again on whether he has sufficient
years of
discretion "to remember what occurs" while the capacity of
narration or communication raises the question whether
the child has
"the capacity to understand the questions put, and to frame and
express intelligent answers" (Wigmore on
Evidence vol II para
506 at 596). There are other factors as well which the Court
will take into account in assessing the
child's trustworthiness in
the witness-box. Does he appear to be honest - is there a
consciousness of the duty to speak the
truth? Then also ‘the
nature of the evidence given by the child may be of a simple kind and
may relate to a subject-matter
clearly within the field of its
understanding and interest and the circumstances may be such
as practically to exclude the
risks arising from suggestibility’
(per SCHREINER JA in R v Manda (supra)). At the same time the
danger of believing
a child where evidence stands alone must not be
underrated.”
[32] Mr
Potgieter, for the appellant, contended that the trial court ought to
have been cautious in evaluating the evidence
of a minor child. He
argued that the court did not attach sufficient weight that the
complainant and her brother F were influenced
to implicate the
complainant falsely and that Ms LvS was biased towards the appellant
and his wife. He argued that the complainant
had, on previous
occasions, implicated H; she struggled with certain recollections and
could not explain how the acts were committed.
Mr Potgieter further
contended that the court erred in finding that F corroborated the
complainant in his account. The trial
court also misdirected
itself, so it was argued, in its evaluation of the evidence of Dr
Liebenberg.
[33] It
is common cause that the complainant was sexually violated. The key
issue in dispute both in the trial court
and in this court is whether
the complainant was sexually molested by the appellant. A single
incident in respect of which H accidentally
touched the complainant’s
private part when playing became central to the appellant’s
defence.
[34] It
is important to first consider the purported influence which the
appellant contends various family members and
officials exerted upon
the complainant and F to implicate him falsely. Ms LvS is at the
forefront of the group said to have done
so. However, it was never
put to her that she did so. Instead the defence put it to Ms Wentley
that from the statement which F
made to the police there was pressure
from Ms LvS and the Investigating Officer, W/O Salome Coetzee. Ms
Wentley bore no knowledge
of this. It is illogical that Ms LvS would
try to protect the interest of her son H in the circumstances where
the complainant
had pointed to the appellant as the assailant to
various officials. W/O Salome Coetzee, in the course of the
investigation, collated
the pictures and letters that were drawn and
written by the complainant during the period of the alleged
molestation. Ms MD could
not say why she was of the view that the
Warrant Officer influenced the complainant because she also disclosed
the pictures and/or
drawings that depicted the appellant as innocent.
[35] Cpt
Spies conceded that it was possible that any family member may have
influenced the children to exonerate H
and attribute the wrongdoing
to the appellant. However, she went on to state that the complainant
never mentioned that she was
unhappy with her extended family. Cpt
Spies intimated that her assessment is of the nature that establishes
what bothers a child.
In her opinion if there was pressure from the
extended family on the complainant she would have revealed this. She
did not.
[36] The
evidence is overwhelming that the appellant and his spouse persuaded
the children to implicate H falsely and,
in the complainant’s
own words: “
to keep the appellant as long as possible out of
jail
”. F was eight years old when the appellant was
subjected to the full might of the law. F could not, by any stretch
of imagination, have invented evidence to the effect that they were
told by the appellant that if they implicated H nothing would
befall
him. He also corroborated the complainant’s version on how
their mother influenced them. Under cross-examination the
complainant
remained resolute that H only touched her private part accidentally
once when playing. She also intimated that she
was certain that she
did not out of her own free will tell her mother that H improperly
touched her. She was forced by her mother.
[37]
Concerning the identity of the abuser the evidence by Dr Libenberg
that the hymenal diameter of 7.1 mm could never
have been caused by a
finger or fingers of an eight year old boy should dispel any notion
that H was responsible for the deeds.
An object that would have
caused the vaginal injuries would have had a diameter of
approximately 20 mm. It is significant to point
out that the defence
also attempted to put the blame on a catheter to discredit the
complainant’s version. It was put to
Dr Liebenberg that the
vaginal injuries could have been caused by a catheter that the
complainant carried at the time set out in
the charges. As it turned
out, she had this catheter on for few weeks when she was six months
old not at the time of the offences.
[38] Ms
MD was hard pressed to concede that the medical evidence and the
complainant’s evidence was the death
knell to the defence’s
course
.
“
Ek kan nie verby
die mediese bewys kom nie
”… “
Ek kan nie
verby my kind se getuienis kom nie
..” Crucially, the
offences are alleged to have been perpetrated over a number of the
years. Rumours concerning the abuse
commenced when H was four and
continued until he was eight years old. Apart from the corroborative
medical evidence it is inconceivable
that the four, five, six, seven
or even eight year old H would have caused the vaginal injuries of
the magnitude described by the
doctor as the appellant and his wife
sought to suggest.
[39] In
our view the identity of the assailant ought to be resolved without
any difficulty. The appellant was no stranger
to the complainant. She
knew him for years and more importantly, she was accustomed to his
voice. It is to be recalled that Cpt
Spies testified that one of the
sensoric information obtained by the complainant from the abuser was
her knowledge of his voice
albeit the offensive acts were committed
in darkness. The complainant intimated that she was a light sleeper.
During those dreadful
moments when the appellant entered her bedroom
to molest her she would switch the light on but he would instruct her
to switch
it off. This should put paid any proposition that her
identification of the attacker is vague.
[40]
Mr Potgieter further took issue that cross-examination of the
appellant and his spouse came close to harassment.
He argued that the
record is bristling with sarcastic and degrading remarks with no
intervention by either the legal representative
or the trial court.
I
n
S
v Omar
[7]
the
court made the following important observation:
‘
After
a reading of the record I am compelled to observe that the conduct of
the prosecutor in cross-examining the appellant was
unseemly and
unfair. He was hectoring, rude and unreasonable. His questions were
interspersed with derogatory comments on the credibility
of the
appellant's answers and on his demeanour. I am satisfied that any
witness subjected to abuse of this nature would be unfairly
handicapped thereby and precluded from doing full justice to himself.
The
magistrate in his reasons in reply to this criticism observes that
the appellant was represented by counsel who could have objected
had
he considered the manner of cross-examination to be unfair. This is
correct, so far as it goes. I am constrained to remark,
however, that
the fact that an accused is represented by counsel does not absolve
the presiding officer from ensuring that he receives
a fair trial or
from requiring those who appear before him to comport themselves
properly in his court. The magistrate should never
have permitted the
prosecutor to behave in this fashion.’
[41]
It is important to remember that a cross-examiner should put his/her
case or defence on each and every aspect which
he/she wishes to place
in issue, explicitly and unambiguously, to a witness.
[8]
This the State did comprehensively and within the bounds of
acceptability. The cross-examination was not unduly lengthy but was
repetitive. Some of the remarks made by the prosecutor were uncalled
for. However, we are unpersuaded that the questions asked
led to a
failure of justice. After all, it is permissible for a cross-
examiner to press hard but fairly if a witness, like in
this case, is
evasive and untruthful.
[42] The
trial court was alive that the complainant was a single witness whose
evidence had to be approached with caution.
She made an admirable
impression on the trial magistrate who was of the view that she was
trustworthy, reliable and gave her evidence
in a straight forward
manner. The magistrate considered that the complainant gave evidence
on events which took place over a long
period of time after a long
time lapse.
[43] The court
rejected the appellant’s version as false insofar as it was in
conflict with the State’s version. In
our view the State
acquitted itself of the onus to prove the appellant’s guilt
beyond any reasonable doubt. The magistrate’s
conclusion that
the appellant is guilty on the two counts of rape, sexual assault,
and indecent assault is unassailable and ought
not to be disturbed.
Ad sentence:
[44] To
recapitulate, the appellant was sentenced to three years imprisonment
in respect of the conviction on Count
2, indecent assault, life
imprisonment in respect of the convictions on Counts 3 and 4, rape,
and four years imprisonment in respect
of the conviction on Count 6,
sexual assault.
[45]
It is trite that the sentencing discretion pre-eminently resides with
the trial court. An appellate court may only
interfere with the
sentence where it is convinced that such sentencing discretion has
been exercised improperly. A mere misdirection
is not by itself
sufficient. It must be of such a nature that it shows directly
or inferentially, that the court did not
exercise its discretion at
all or that it exercised it improperly or unreasonably.
[9]
[46]
In
S
v Malgas
[10]
it was held that the court should not deviate from imposing the
prescribed minimum sentences for flimsy reasons. The court
conducting an enquiry into whether substantial and compelling
circumstances are present or not must still consider the long
established
triad of factors in respect of the nature of the offence
in question, the personal circumstances of the accused person, and
lastly
the interests of society.
[47]
Mr Potgieter submitted that the trial court erred in finding that the
cumulative effect of the appellant’s personal
and mitigating
circumstances were not sufficient to justify a departure from the
imposition of the prescribed minimum sentences
as set out in Part 1
of Schedule 2 of the Minimum Sentence Act. He argued that the
court did not attach sufficient weight
to the appellant’s
medical condition and over-emphasised the interests of the community
and the seriousness of the offences.
He further submitted that the
trial court imposed the sentence out of anger and thus erred in
concluding that there were no substantial
and compelling
circumstances present which would ameliorate the effect of the
prescribed sentence of life imprisonment.
[48]
Counsel for the State, Mr Hollander, submitted that given the
prevalence and seriousness of the offences upon which
the appellant
was convicted and the lack of remorse displayed by him, the trial
court correctly imposed the prescribed sentence
of life imprisonment
in respect of Counts 3 and 4 as there were no substantial and
compelling circumstances present.
[49] The
appellant’s personal and mitigating circumstances are recorded
as follows. He is unemployed. He attained
matric and was previously
employed as a computer programmer. His health was affected by
his HIV positive status. He was a
recipient of the State’s
social grant.
[50] The
complainant was described by the appellant as a kind-hearted person
who deeply cared for others. She shed tears
as she relived the
incidents in court. Her abuse went on to the point where she
intimated she could not think any longer. She did
not know how to
react or what to do each time the appellant entered her room to
violate her. She kept the secret of the abuse
for years to
herself because she was scared that the revelation would disintegrate
her family. In her victim’s impact report
Ms Wentley recorded
that the complainant had been psychologically and emotionally
traumatised by the incidents. She has been made
to feel worthless,
cheap, shameless, and empty. Ms Wentley added that the impact of the
offence left the complainant confused,
vulnerable and exposed.
[51] The
complainant was robbed of her innocence in the sanctity of her own
private space where she was supposed to
have been safe. She regarded
the appellant as her father who was supposed to have been protective
of her. The emotional scars emanating
from the
agony is likely to remain with her for her lifetime. Her
plaintive requests to her stepfather to stop were ignored. He carried
on
undeterred. It was placed on record that the complainant was not
infected with HIV. Even so, the fact that the appellant knowingly
sexually violated the complainant while he was HIV positive is one of
the most aggravating features of this case. While his ill-heath
is a
factor to be considered in determining the appropriate sentence the
punishment must fit the crime.
[52] In
our view, the personal and mitigating circumstances of the appellant
do not constitute substantial and compelling
circumstances as
envisaged in the Minimum Sentence Act and certainly recedes to the
background. Taking into account their
cumulative effect, the
nature of the sexual offences upon which he was convicted, their
prevalence in society, the aggravating
factors present, the interests
of society and the need to exact punishment that would be retributive
and serve as a deterrent,
satisfy us that the trial court properly
applied its mind. Consequently, its conclusion should not be upset.
We make the
following order:
Order
1.
The appeal against both
the conviction and sentence is dismissed.
2.
The conviction and the
sentence of the appellant by the trial court is hereby confirmed.
V
M PHATSHOANE
FOR
THE COURT
O
K CHWARO
FOR THE COURT
APPEARANCES:
Counsel
for the appellant:
ADV
J POTGIETER
Instructed
by:
Peyper
Lessing Attorneys
Bloemfontein
Counsel
for the respondent:
ADV
Q HOLLANDER
Instructed
by:
Director
of Public Prosecutions
Kimberley
[1]
Exhibit C
[2]
Exhibit D
[3]
Olawale v S
[2010] 1 All SA 451
(SCA) at paras 14-15;
S
v Stevens
[2005] 1
All SA 1
(SCA) at 5d-h and
S
v Gentle
2005 (1)
SACR 420
(SCA) at para 17.
[4]
(537/18)
[2020] ZASCA 42
(21 April 2020) at para 71.
[5]
2009 (4) SA 222
(CC) at paras 105-6
[6]
1981 (1) SA 1020
(A) at 1028A-E
[7]
S v
Omar
1982 (2) SA 357
(N) 358H-359A.
[8]
S
v Boesak
[2000] ZASCA 112
;
2000
(1) SACR 633
(SCA) at 647c para 49.
[9]
S v Pillay
1977 (4) SA 531
(A) at 534H-535G
[10]
2001(1)
SACR 469 (SCA)