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[2021] ZAKZPHC 48
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Khanyile v S (AR 108/20) [2021] ZAKZPHC 48 (6 August 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
No: AR 108/20
Magistrate’s
Case No: GRC 12/19
In
the matter between
SFISO
LUCKY
KHANYILE THE
APPELLANT
and
THE
STATE THE
RESPONDENT
Dealt with in term of s
19(
a
) of the
Superior Courts Act 10 of 2013
without a hearing.
This judgment was handed down electronically by circulation to the
parties’ representatives by email.
The date and time for
hand-down is deemed to be 10:00 am on 6 August 2021.
ORDER
The
appeal against conviction and sentence imposed by the trial court is
dismissed
APPEAL
JUDGMENT
MOGWERA
AJ (K PILLAY J concurring)
[1]
On
26 June 2019 the appellant was convicted of rape of his minor
daughter and sentenced to life imprisonment by the Greytown Regional
court. Pursuant to this he was declared unfit to possess a firearm in
terms of the provisions of
section 103
of the
Firearms Control Act,
2000
and an order was made that his name be inserted in the register
of sexual offenders. This appeal is brought without leave of that
court as the appellant exercised his automatic right to appeal
against his conviction and sentence in terms of section 10 of the
Judicial Matters Amendment Act 42 of 2013.
[2]
The
state’s evidence which led to the conviction of the appellant
was given by six witnesses: Dr Laura Troskie, the complainant,
X.S.K., S.B., N.K. and Richard Andrew Gilden. What follows is a brief
summary of their evidence.
[3]
Dr
Troskie examined the complainant, who was 16 years at the time, at
Greytown Hospital on 24 July 2018. The complainant was brought
to her
by a member of the South African Police Service, with a history that
she had been raped by her father. There were no visible
injuries
revealed by the gynaecological examination of the complainant, but
she observed that the complainant’s hymen was
absent, which
indicated to her that she was no longer a virgin. She testified that
lack of visible injuries did not necessarily
exclude the possibility
that sexual penetration had occurred as stated by the complainant.
The doctor also took samples from the
complainant’s genital
area and packaged them in a sexual assault evidence collection kit,
as required for purposes of DNA
analysis. The kit was handed to one N
T Shezi, the police officer who was in the complainant’s
company to take to the police
station.
[4]
The
complainant, who testified through an intermediary, stated that on 24
July 2018 when she returned home from collecting firewood
she was
called by her father (the appellant) to his structure (room). Upon
her arrival in this room the appellant grabbed her and
threw her onto
his bed. He removed her panties, and his pants and thereafter
proceeded to have sexual intercourse with her. Thereafter
he put his
pants back on and left to go to work. Immediately thereafter the
complainant reported the incident to one X.S.K., her
aunt. The matter
was subsequently reported to her grandmother, and to the police who
were called to attend to the complaint. The
complainant was then
taken by the police to the doctor on the same day. The appellant was
then arrested.
[5]
The
complainant also testified that she had been raped by her father
previously. She recounted an incident which occurred in March
2017.
She indicated that she was in relationship with a certain boy from
the Buthelezi family. One night she sneaked out to visit
him and she
returned home at about 23h00. She was then given a hiding by the
appellant, until he was stopped by his wife who is
the complainant’s
stepmother. The following day the appellant’s wife left to a
place where she had to attend a funeral.
It was during that day that
the complainant testified her father came back from work during lunch
time, and told her to show him
how she ‘was doing or how did
[she] do it to the Buthelezi boy.’ He removed her panties and
had intercourse with her
and thereafter went back to his work place.
She did not report this incident to any person because the appellant
had threatened
to kill her if she did.
[6]
The
complainant further stated that there had been similar incident prior
to this, although she could not recall the exact date
when it
happened. On that occasion it was at night and all members of her
family were sleeping in their respective rooms. The appellant
came to
her room and got onto her bed. He removed her pants and her panties,
and when she asked him what he was doing as she did
not understand
what was happening, he told her to keep quiet. He lowered the zip of
his pants, took out his genital organ and inserted
it into her
genital organ and had sexual intercourse with her. When he had
finished she took a tissue and wiped herself and it
was then that she
realized that she was bleeding. The appellant had gone back to the
room where he sleeps with his wife. This incident
prompted the
complainant to report to one, S.B., what had been done to her.
[7]
X.S.K.
testified that on 24 July 2018 around midday she was at her home when
the complainant reported to her that she had just been
raped by her
father. She then took the complainant to her (X.S.K’s) mother
who decided to examine the complainant. Thereafter
it was decided
that the police should be called and this was done. The police
arrived and attended to the complaint.
[8]
The
evidence of S.B. is that the complainant had reported to him that the
appellant ‘was raping’ or had raped her. This
report was
made to him sometime in 2017, that is the year preceding the one he
was called to testify about. The complainant told
him that this would
happen when her mother was away, that the appellant would sometimes
do this in the forest or plantation and
also when ‘her father
is returning from work.’ He understood this to mean that this
had happened on different occasions.
He told his aunt, N.K., what had
been reported to her by the complainant. This was confirmed by N.K.
in her evidence. She also
stated that upon questioning the
complainant regarding this matter she informed her that the incident
of that day was not the first
one, and that had happened before.
[9]
Although
the evidence of Constable Richard Andrew was not a model of clarity
what can be gleaned therefrom is that he is the police
officer who
arrested the appellant and obtained from him a buccal sample for DNA
purposes. He properly sealed the sample which
he had marked in the
exhibit bag which was also marked using a serial number. These were
later sent to the Forensic Science Laboratory
by courier, and the
crime kit was also sent there by him for forensic analysis and
comparison with the buccal sample. To avert
further confusion, the
defence decided to make formal admissions regarding the chain of
custody of the samples, namely that they
were properly obtained,
packaged and sealed and that there had been no tampering therewith
until they were subjected to a comparison
process at the Forensic
Science Laboratory.
[10]
The
appellant denied all the allegations made against him by the
complainant. He testified that the complainant came to stay with
him
and his family in Rietvlei since she was still an infant. Her mother
is residing in Mooi River. At no stage had he ever had
sexual
intercourse with the complainant. He believes that the complainant is
falsely implicating him because she used to go out
through the window
at night, when the family would be sleeping, to visit boys, and he
would beat her up when she returned. He mentioned
the incident
relating to the Buthelezi boy to illustrate this point. He is also of
the view that the reason why the complainant
concocted these stories
about him is because he used to refuse her permission to visit her
mother, as he noticed that the complainant
was starting to be
naughty. The appellant further testified that there has always been
some animosity between his family and the
family of the other
witnesses who testified that they were informed of the incidents by
the complainant.
[11]
The
appellant raised the following grounds for appeal against conviction
and sentence:
(a)
the trial court failed to exercise caution in its evaluation of the
evidence of the complainant who was a single witness and a
child at
the time;
(b)
the trial court erred in rejecting the evidence of the appellant that
the complainant was implicating him falsely because he had
chastised
her and she wanted to go and reside with her mother;
(c
)
the trial court failed to give sufficient weight to the personal
circumstances of the appellant in its consideration of the
appropriate
sentence; and
(d)
the sentence imposed by the trial court is excessive and grossly
inappropriate as to induce a sense of shock.
[12]
At
issue in this appeal is whether the court
a
quo
was correct in its finding that the guilt of the appellant had been
proved beyond a reasonable doubt and whether it failed to exercise
its sentencing
discretion properly which resulted in its sentence being vitiated by
irregularity or material misdirection or being shocking and
disproportionate.
[1]
[13]
In
S
v Van der Meyden,
[2]
Nugent
J set out the test to be applied in determining whether the guilt of
the accused has been proved in these terms:
'The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of the test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.'
[14]
I
shall first deal with the assertion that the trial court failed to
exercise the necessary caution when evaluating the evidence
of the
complainant. It was the finding of the trial court that the evidence
of the complainant was credible and reliable. That
the trial court
was cognisant of the need for it to treat the evidence of the
complainant with caution is clear from the record
of proceedings.
[3]
The court further found that the evidence of the complainant that
there was an act of sexual penetration was corroborated by the
fact
that the appellant’s DNA was found in the complainant’s
genital organ, despite there being no visible injuries
suffered by
the complainant.
[4]
This finding
by the trial court is indeed justified by the evidence, as the
presence of the appellant’s DNA on the vaginal
vault swab
obtained from the complainant is strong corroboration which renders
the appellant’s version that he has never
engaged in an act of
sexual penetration with the complainant implausible. There is no way
this evidence could have been disputed,
which is why the appellant
could not explain how his DNA came to be inside the complainant’s
genital organ.
[15] The
trial court was also correct in its rejection of the appellant’s
version that he was being falsely
implicated by the complainant
because he used to chastise her for her misbehaviour, like he did
after the incident with the Buthelezi
boy. It reasoned that it is
impossible that this version could be true, when considered in
conjunction with the DNA evidence. Of
significance in this regard is
the fact that it is the complainant herself who volunteered
information about an incident involving
the Buthelezi boy when she
testified. It is also noteworthy that she testified that she did not
report the incident which happened
immediately thereafter to anyone
as the appellant had threatened that he would kill her if she did.
Therefore, the particular incident
was not the one which led to the
arrest of the appellant, and this is inconsistent with the
appellant’s version that she
lied about him because she was
aggrieved by the fact that he would chastise her. For these reasons I
find no basis for interfering
with the finding that the appellant’s
guilt has been proved beyond a reasonable doubt.
[16]
Regarding
sentence, it needs to be restated that punishment is pre-eminently
the prerogative of the trial court. Unless the trial
court committed
a material misdirection, a court exercising appellate jurisdiction
cannot simply substitute the sentence imposed
with the one it
believes would have been more appropriate, as ‘to do so would
be to usurp the sentencing discretion of the
trial court’.
[5]
However, interference will be justified where the sentence imposed by
the trial court differs so greatly from the one which would
have been
imposed by the court of appeal.
[6]
A well-considered sentence is one which factors in principles of the
triad, being the crime, the offender and the interests of
society,
[7]
and purposes of punishment, being deterrence, prevention,
rehabilitation and retribution, as well as all other mitigating and
aggravating circumstances which are relevant to a particular case.
[17] It
is averred that the trial court failed to place sufficient weight on
the personal circumstances of the
appellant. These are highlighted as
the age of the appellant at the time of sentencing, being 44; his
level of education; the fact
that he has 4 minor children aged 4,6, 7
and 15; the fact that he is casually employed and is the one who is a
breadwinner in his
family as well as the fact that he is a first
offender and is capable of rehabilitation. These circumstances, it is
argued, makes
the sentence of life imprisonment excessive and
disproportionate. It appears from the record of proceedings that the
learned magistrate
did in fact consider the appellant’s
personal circumstances, which he found to be far outweighed by
interests of society,
and he thereafter proceeded to deal with the
seriousness of the offence. Therefore, the allegation that he failed
to consider the
appellant’s circumstances or to accord them
sufficient weight as submitted is incorrect. The fact that he says
they are ‘outweighed’
by other factors clearly indicate
that he had applied his mind thereto and that he also evaluated them.
[18]
The
final submission by the appellant is that the sentence imposed by the
trial court is grossly disproportionate in that it induces
a sense of
shock,
because
of its severity. In determining whether or not this submission has
merit it needs to be emphasized that because there is
a
statutorily
prescribed minimum sentences applicable in this case, the trial court
was not at liberty to impose whatever sentence
it considered
appropriate upon ‘a clean slate’, but was enjoined to
impose the prescribed minimum sentence, unless
substantial and
compelling circumstances are present that justify a deviation from
it. It is quite evident from its judgment
that the trial court
approached the issue of sentencing being ‘conscious of the fact
that the legislature has ordained life
imprisonment or the particular
prescribed period of imprisonment as the sentence which
should
ordinarily
be
imposed’,
[8]
which is not
a misdirection on its part.
[19]
I
also cannot find any misdirection in the finding of the trial court
that there were no substantial and compelling circumstances
justifying it to deviate from the prescribed sentence of life
imprisonment. This is based on fact that it is precisely because
of
the ‘alarming burgeoning in the commission of crimes of the
kind specified’ in the Act, that the legislature decided
that
it was ‘no longer to be ‘business as usual’ when
sentencing for the commission of the specified crimes’
[9]
and
that what was required was ‘a severe, standardised, and
consistent response from the courts to the commission’
of those
crimes.
[10]
It
is impermissible for the court to deviate from a prescribed sentence
‘lightly and for flimsy reasons’, notwithstanding
that
all factors relevant to determining sentence should still be taken
into account. However, where
the
imposition of the prescribed minimum sentence would be unjust or
‘disproportionate to the crime, the criminal and the
legitimate
needs of society’ that in itself constitutes substantial and
compelling circumstances, justifying a deviation
from that
sentence.
[11]
[20]
The
finding by the trial court found that the personal circumstances of
the appellant were far outweighed by other considerations
relevant to
sentencing is based on what it highlighted as constituting
aggravating factors in this case. These are the prevalence
of cases
of child and women abuse, especially of a sexual nature;
[12]
the fact that the offences were ‘committed with premeditation
and calculation’ and ‘systematically’;
[13]
that the appellant had abused his own child, thus abusing his
position as a father, a position of trust;
[14]
that the abuse happened over a long period of time, giving the
appellant time to reflect and stop what he was doing;
[15]
that the abuse had devastating effects on both the physical and
emotional well-being of the complainant;
[16]
and further that there was ‘not even an iota of evidence’
indicating that the appellant was remorseful for his deeds.
[17]
All these factors are well-grounded, based on the evidence.
[21]
There
is thus no merit in the submission that the sentence is shocking or
disproportionate given the above. In addition, no material
misdirection has been demonstrated. For these reasons the following
order is made:
(a)
The
appeal against conviction and sentence imposed by the trial court is
dismissed.
MOGWERA
AJ
K
PILLAY J
Appearance
Counsel
for Appellant : A Hulley
Instructed
by
: Justice Centre, Pietermaritzburg
Counsel
for Respondent : N Kunene
Instructed
by
: Deputy-Director of Public Prosecutions, Pietermaritzburg
[1]
S v
Rabie
1975 (4) SA 855
(A) at 857
;
S v Petkar
1988 (3) SA 571
(A) at 574
;
S v Malgas
2001 (1) SACR 469
(SCA),
Director
of Public Prosecutions, KwaZulu-Natal v P
2006
(1) SACR 243 (SCA).
[2]
1992 (2) SA 79
(W) at 82 [2] See also
S
v Van Aswegen
2001 (2) SACR 97
(SCA) para 6 and
S
v Shilakwe
2012 (1) SACR 16
(SCA) para 11.
[3]
See the record at page 78, line 9.
[4]
See the record at page 79, line 2.
[5]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12.
[6]
S v
Kgosimore
1999 (2) SACR 238
(SCA) para 10.
[7]
S v
Zinn
1969 (2) SA 537
(A) at 540G.
[8]
S
v v Malgas
2001
(1) SACR 469
(SCA)
par 8.
[9]
S v
Malgas
(supra)
par 7.
[10]
S v
Malgas
(supra)
par 8.
[11]
S v Malgas (supra) par 22;
S
v Fatyi
2001 (1) SACR 485
(SCA) par 5;
S
v Dodo
2001
(3) SACR 382
(CC) par 40
Vilakazi
2009 (1) SACR 551
(SCA) par 15.
[12]
See record page 87 line 2.
[13]
See record page 87 lines 9 and10.
[14]
See record page 87 lines 10 and 15.
[15]
See
record page 87 line 12.
[16]
See record page 87 lines 16 -20.
[17]
See record page 88 line 1.