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[2019] ZAGPPHC 1083
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Ajose v S (A624/2017) [2019] ZAGPPHC 1083 (14 May 2019)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A624/2017
In
the matter between:
A
AJOSE
Appellant
And
THE
STATE
Respondent
JUDGMENT
NEUKIRCHER
J:
1.
The appellant was charged with one count of intimidation
[1]
and eight counts of rape in the Regional Court, Pretoria.
[2]
2.
The charges of rape all allegedly took place between the months of
September and October 2012 and all are similar in their description
and that is that the applicant was accused of:
“
... unlawfully and
intentionally committing an act of sexual penetration with the
[complainant] (13 years) by penetrating her vagina
with his finger
and sucking her vagina without her consent.”
3.
The charge of intimidation was founded in the allegation that the
appellant threatened to kill the complainant if she told anyone
about
the alleged rapes.
4.
As already stated, the complainant was 13 years old at the time of
the rapes and was 17 years old at the time the trial commenced.
5.
The appellant pled not guilty to all nine charges and was eventually
found guilty and convicted on all nine counts on 10 July
2017 and
sentenced as follows:
5.1 on count 1 of
intimidation: to 3 years imprisonment;
5.2 on counts 2 to 9 (the
rape charges): taken together for sentencing - life imprisonment in
terms of section 51(1) of Act 105
of 1997;
5.3 in terms of section
260(2) the sentences were ordered to run concurrently.
6.
Leave to appeal was granted against both conviction and sentence.
7.
The State called four witnesses: the complainant, her mother (A C –
“C”), Dr Seller, who performed the medico
legal
examination on the complainant and Mrs M, the principal of X High
School in Centurion where the complainant was In Grade
8 in 2013.
8.
The appellant then testified as did Ajoke Oshodi (“O”),
his erstwhile girlfriend, and Oyelouuo Rotimi (“Rotimi”),
a friend of his.
9.
It is important to note at the outset that, insofar as the charges
are concerned, the complainant is in actual fact a “
single
child witness”.
None
of the other witnesses saw any of the incidents, save one allegedly
seen by Oshodi, but she denies this.
10.
Insofar as the complainant's' evidence is concerned, one must
approach it bearing in mind the cautionary rules relating to the
evidence of a single witness. ln
S
v Sauls & Another
[3]
lt was held 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
does not mean that the appeal must succeed if any
criticism, however
slender, of the witnesses' evidence was 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.”
[4]
11.
On this note, it bears emphasising that at no stage did appellants'
counsel argue that the appellant was not guilty of intimidation
and
rape. Rather, the argument before us focused on whether the appellant
was guilty of all eight counts of rape. It was argued
that the State
was only able to prove two counts of rape and two counts of sexual
assault because, ln respect of the latter 2
counts, there was no penetration beyond the genitalia of
the complainant and thus It was on these that the conviction should
have been handed down and the sentences passed. This aside from the
intimidation charge. Thus, at best for the State, the life
sentences
can only stand in respect of the two counts of rape according to the
argument.
12.
Given this argument the facts bear some analysis.
13.
The complainant testified that at the time she was staying in
Sunnyside, Pretoria with the appellant, Oshodi,
[5]
her baby and his cousin. The appellant was, at the time, her mother's
boyfriend. Her mother had gone to Johannesburg to seek employment
and
had left her in the care of the appellant, for a period of
approximately one to two months.
14.
She testified that prior to her mother moving to Johannesburg, and
when she and her mother was still staying together, when
the
appellant would visit them in their flat he would forbid her to wear
towels around him. She testified to one incident
[6]
when she had a bad rash on her inner thigh and he Insisted on
applying the ointment he bought for her himself. He asked her to
put
her leg on his knee and touched her labia.
15.
After she moved to Sunnyside with to live with the appellant, there
was another incident - he told her she was too fat and should
do
exercises. One day she was doing sit-ups on the bedroom floor and the
appellant told her to lie on the bed to do leg exercises.
She
testified that she was wearing baggy shorts; he spread her legs apart
and moved the shorts aside together with her panty and
inserted his
finger into her vagina.
[7]
She
jumped up and asked him what he was doing and he responded by puffing
his hand over her mouth, telling her to keep quiet and
that it would
not hurt. He kept Inserting his finger in and out of her vagina. He
clenched her thighs shut too, to prevent her
from kicking him. He
then took off her shorts and sucked her vagina.
16.
When he was done, she started crying and threatened to tell her
mother. It was at this point that he threatened to kill her
if she
did so and told her that this would “
break (her) mothers'
happiness”.
17.
She then took a bath because she felt dirty and he watched her whilst
she was doing so.
18.
Her evidence was that “
this happened a lot”
- she
would take bath, he would come into the bathroom and· sit on
the toilet and watch her bath. If she wore a towel, he
would take it
off, push her onto the bed, insert his finger into her vagina and
then suck her vagina. In her words:
“
... it would
happen for days on end ... he would molest me... .It was kind of like
an everyday thing, it was a cycle.”
19.
When she asked him why he was doing this and begged him to stopt the
appellant told her:
“…
I am
doing this because I get money every time I do this. It is like a
lucky charm to me.”
20.
He also told her he is only doing this to make her “a
big
girl”
and for her to know what to expect when she gets into
a relationship when she is older; for her to “
grow up and
become a woman”.
21.
The third incident
[8]
was when
she was watching TV, playing on her cell phone. At a stage, the
appellant called her into his room and showed her some
graphic
cartoon pornography. When. she protested, he pushed her onto the bed,
took off her panty and sucked her vagina. Again when
she protested he
told her that is only doing this because he is “
trying
to be
a
loving
father; to make her
a
woman
and to raise her 'properly
”
'.
22.
The fourth incident
[9]
was an
occasion when the complainant's mother came to visit from
Johannesburg. The appellant insisted that the complainant accompany
him to buy alcohol and to avoid a fight she did just that. He parked
his car at the back of a club, unclipped her seatbelt, put
his hand
over her mouth, reclined his seat and put his other hand in her pants
to touch her clitoris. She tried to stop him but
he was too strong
for her. He eventually stopped and after a few minutes went into the
shop and bought what he needed and they
went home.
23.
She testified that whilst they were walking back to the flat, she was
walking “
funny”
because she was uncomfortable and
in pain. The appellant hit her on her back and told her to “
stop
if,
that he mother would see - so she put on her “
brave
face”.
24.
Her evidence was that her mother was too in love with the appellant
to notice that anything was wrong.
25.
Another Incident in the bathroom was interrupted when the complainant
started screaming. The bathroom window faced onto the
bedroom window
and the complainant testified that when she screamed, she heard
Oshodi scream at the window and ask what she and
the appellant were
doing – Oshodi denies that this ever took place.
26.
A fifth incident took place at a club in Menlyn called Ties.
According to the complainant's evidence, the appellant promised
her
that this would be the last time that he touched her. According to
her, he said that this was his “
good luck charm”
and
that “
he is just trying to raise (her) to be a good woman”.
Her evidence was that he let his seat down, and that struggling
got her nowhere, so she just “
gave up”.
The
appellant inserted his finger in her vagina and she testified that he
“was
busy for
a
very long time”.
When he
was done, he then went into the club to collect his money and they
went home.
27.
According to the complainant's evidence she told a friend at school
about all of this. In return, she was accused of being “
dirty'
by her friend and was told that no one would love her.
28.
She told her mother of the molestation only after her mother and the
appellant had ended their relationship after a quarrel
that had
turned violet between them. She did not do so before as she knew that
her mother would have told then appellant, and she
felt that her
mother had, before this violent quarrel, loved the appellant more
than she.
29.
The complainant stood well under cross-examination. She was resolute
in her answers with little to no contradictions that were
of any
import. At no stage during argument before us, was it argued that her
version was improbable. Rather, argument was focused
on whether the
appellant had been correctly convicted on eight counts of rape and,
in my view, correctly so.
30.
The corroborating evidence was that of Mrs Malherbe who testified
that the complainant was a child:
“
... that presented
with considerable anxiety, broke into panic attacks and fainted on a
regular basis.”
31.
She also testified that the complainant was:
“…
such a
tiny little girl, so fragile …”
32.
Dr Seller testified that there was no physical evidence of the rape.
He did testify that not all girls will have a tear to the
hymen after
their first sexual experience. He stated that the complainant was
emotional and crying (which could have been due to
the trauma of the
examination) and that, in any event, the examination took place two
months after the incident which could have
influenced the issue of
whether or not there he found any evidence of the rape.
33.
The complainant's mother (“C”) also testified that it was
only after she had broken up with the appellant and after
she and the
complainant moved back to Centurion together. that the complainant
had told her about the rape and that when she took
the complainant to
the police station lay the charge of rape, the complainant had a
panic attack and had to be rushed to hospital
for an injection to
calm her down. They had to go back to the police the following day to
complete the affidavit.
34.
As to the appellant, C testified that
“…
I
trusted him because he also portrayed himself as my daughter's father
... he would introduce my daughter as his daughter. That
is why I
trusted him so much.”
35.
The appellant denied all the charges against him. His argument was
that the one bedroom flat in which they all resided was “busy”
and had he actually tried to rape the complainant, someone would have
seen him, whether it was the baby's nanny
[10]
or Oshodi or her brother, who was there during the day.
36.
But from Oshodi's evidence it appears that she asked her brother to
move out and he only came to the home to eat in the evenings
and
would then leave. She was also a hairstylist and would leave the home
between 10h00 and 11h00 and not be home until the early
evening. On
her own version therefore, the probabilities that she would have seen
anything were slim. The nanny was not called
to give evidence and
thus any allegations regarding what she may or may not have seen are
simply hearsay and inadmissible.
37.
Rotimi was not able to add anything to the appellant's case as he did
not witness anything. His parting-shot evidence was that
C had raised
the complainant to be “
too familiar with men too aware of
her sexuality”
and that she liked to spend too much time
with the younger men in the pub that C frequented. Interestingly
enough, this was not
put to either the complainant or C during their
cross-examination.
38.
In fact, almost all of the appellant's evidence-in-chief consisted of
versions
[11]
that were put to
neither the complainant nor Cloete. The appellant's chief version was
that the rape and intimidation charges were
laid because the
complainant was very angry when she found out that Oshodi was not his
sister but his girlfriend and that the fact
that the complainant
thought of him as her father, had exacerbated the situation - this
was also not put to the complainant in
cross-examination.
39.
Given the argument before us today, all that really need be said is
that the appellant was not a good witness. His evidence
was
throughout evasive, argumentative and inconsistent. His witnesses
were not of much corroboration and use to him, and their
evidence
left much to be desired.
40.
I am left without doubt that the appellant raped the complainant and
he only question left is: on how many occasions did the
State prove
this beyond reasonable doubt? In my view, this is where the court a
quo
materially erred.
41.
I am of the view that, given the evidence of the complainant as. set
out
supra,
the
State proved two counts of rape and three counts of sexual assault.
The appellant's attorney was given ample opportunity to
cross-examine
the complainant on her version.
[12]
42.
The fact that these rapes were a daily occurrence does not mean that
the State has proven the eight counts that the appellant
was charged
with - evidence must be presented on each of the eight counts with
the elements of the rape present in each. The fact
that the
complainant was 13 years old at the time excludes any form of consent
and in any event. it Is clear from the evidence.
no consent was
given.
43.
As regards the three counts of sexual assault, section 261 of Act 51
of 1977 provides that this is a competent verdict on a
charge of
rape.
44.
Thus. in my view, the state proved that the appellant was guilty of:
44.1 one count of
intimidation;
44.2 two counts of rape;
and
44.3 three counts of
sexual assault.
45.
The court a
quo
imposed sentence as follows:
“
On count 1 ...
3 years imprisonment. On count 2 to 9 the counts are taken together
for sentence, the accused is sentenced to life
imprisonment in terms
of section 51(1) of Act 103(sic) of 1977”.
46.
The appellant argues that the court a
quo
did not properly
consider whether the prescribed sentence of life imprisonment on the
charge of rape was a suitable sentence for
the appellant in the
present circumstances. He argues that his personal circumstances were
not properly taken into account, nor
was the fact that he spent four
years and four months in custody awaiting trial, and he also argues
the fact that any violence
involved in the commission of the crimes,
was minimal.
47.
In my view the court a
quo
erred
in the manner in which it imposed sentence. For each conviction on
each count a separate. sentence is warranted.
[13]
At the end of the day and because these rape charges carries with
them a life sentence (if there are no substantial and compelling
circumstances warranting a deviation), multiple convictions of rape
will have the effect that there were will be multiple life
sentences
passed. Section 280 of Act 51 of 1977 will apply and the sentences
will therefore run concurrently
[14]
.
48.
And so to the question as to whether the appellant demonstrated
substantial and compelling circumstances sufficient to warrant
the
imposition of a lesser sentence:
48.1 the appellant has
two previous convictions: in 2004 In respect of fraud for which he
received a suspended sentence and in 200”5
for assault, for
which he paid an admission of guilt fine of R 500.00;
48.2 the appellant was 41
years old and unmarried at the time of his arrest. His studied
security management in Nigeria and did
a three month security
certificate in South Africa. He ran a security company. He has two
children - a 13 year old son In Nigeria
and a 6 year old daughter In
South Africa and he supported both children.
49.
These circumstances were taken into account by the court
a quo.
50.
What was not taken into account was the fact that the appellant had
spent 4 years and 4 months in prison awaiting trial, but
this in
itself would not be sufficient to overturn the sentence.
51.
What is aggravating in the present matter is the fact that the
appellant stood in a position of trust towards the complainant:
she
regarded him as her father; he introduced her as his child; her
mother left her in his care for two months while she sought
employment in Johannesburg. He abused both their trust; he violated
the body of this young and innocent child and abused her on
a level
that transcended the physical.
52.
Counsel submitted that the violence involved in the commission of
this rape was minimal. I disagree. The complainant testified
that the
appellant hurt her on more than one occasion - he forcibly restrained
her on the bed and would clench her thighs to keep
her still or
prevent her from jumping up. On the one occasion she testified that
after the rape, she was in pain and could not
walk property and the
appellant hit her on the back to force her to walk normally so that
others would not see what he had done
to her.
53.
Furthermore, the evidence is that the appellant was unrepentant,
unremorseful, callous and oblivious to the pain he was causing
- the
complainant was his “
lucky charm”
and he was
teaching her what to expect from a relationship when she was older.
He was helping her to “
grow up and become
a
woman”.
Thus, in his mind, he was doing her a great service.
54.
Accordingly, given all of the aforementioned, in my view no
substantial or compelling circumstances exist to warrant the
imposition
of a sentence on of the rape charges other than a life
sentence.
55.
In respect of the sentence for sexual assault, in general, a sentence
of 5 to 6 years is appropriate. However, the complainant
is a minor
and these sorts of predatory crimes are particularly heinous. They
snatch at the youth and innocence of the victim and
are particularly
prevalent in our society today.
56.
In this matter, the complainant testified that she felt dirty. She
received no support from the friend she confided in and she
felt that
she could not confide in her own mother, or her school teachers. She
suffered from panic attacks at school and would
have to go home and
the cycle of abuse would start all over again.
57.
In light of all of this, I am of the view that the sentence of 8
years on each count of sexual assault is appropriate.
58.
The sentence of 3 years for the charge of intimidation is appropriate
and is upheld.
59.
Given the life sentence, all the other sentences shall run
concurrently with that.
60.
Thus, the order that I make Is the following:
60.1 the convictions and
sentences in the Regional Court are set aside.
60.2 The convictions and
sentences are replaced with the following:
60.2.1 the appellant is
found guilty of:
(a) count 1.
(intimidation);
(b) counts 3 and 6
of rape; and
(c) counts 2, 4 and
5 of sexual assault.
60.3 The appellant is
sentenced on each of the charges as follows:
(a) on the count of
intimidation, to 3 years of imprisonment;
(b) on each of the
counts of rape, to life imprisonment:
(c) on each of the
counts of sexual assault, to eight year's imprisonment.
60.4 The sentences on
charges 1, 2, 4, 5 and 6 shall run concurrently with the sentence of
life imprisonment Imposed in respect
of charge 2.
___________________
NEUKIRCHER
J
I
agree, and it is so ordered
___________________
RANGATA
AJ
Date of hearing: 2 May
2019
Date
of judgment: 14 May 2019
[1]
A contravention of section 19(1)(a) read with sections 2 and 3 of
the Intimidation Act, No. 72 of 1984
[2]
As read with the provisions of section 51 of Act 105 of 1977
[3]
1981 (3) SA 172
(A) at 180E- G
[4]
Also S v Ndubane, 2017 JDR 0641 (GP)
[5]
who she thought was the appellant's sister but in actual fact was
his girlfriend
[6]
Which I will call Incident number 1 and relates to count 1
[7]
This is incident number 2 and relates to count 2
[8]
Relating to the third count
[9]
Relating to the fourth count
[10]
Who worked during the week
[11]
There was more than one
[12]
State v Bogtsu, 2017 JDR 0638 (GJ) at paras. 31 and 32
[13]
Hiemstra's Criminal Procedure; LexisNexis; pg 28-41
[14]
One must bear in mind the theory of punishment expressed in S v
Khumalo
[1984] ZASCA 30
;
1984 (3) SA 327
(A) at 330D-E:
“
in
the assessment of an appropriate sentence, regard must be had inter
alia to the main purposes of punishment mentioned by Davis
AJA In R
v Swanepoel
1945 AD 444
at 455, namely, deterrent, preventative,
reformative and retributive ...”