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[2019] ZAGPPHC 244
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Botha v S (A54/2016) [2019] ZAGPPHC 244 (11 June 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: A54/2016
11/6/2019
In
the matter between:
PAULUS
JOHANNES BOTHA
Appellant
and
THE
STATE
Respondent
JUDGMENT
AC
BASSON, J
[1]
The
appellant pleaded not guilty in the Regional Court, Secunda to the
following charges preferred against him:
Count 1:
Rape (2003) read with section 51(2) of the Criminal Law Amendment
Act, Act 105 of 1997;
Count 2:
Indecent assault read with section 51(2) of Act 105 of 1997;
Count 3:
Indecent assault read with section 51(2) of Act 105 of 1997;
Count 4:
Assault with the intent to cause grievous bodily harm;
Count 5:
Assault with the intent to cause grievous bodily harm;
Count 6:
Assault with the intent to cause grievous bodily harm;
Count 7:
Assault with the intent to cause grievous bodily harm;
Count 8:
Rape (2004) read with section 51(2) of Act 105 of 1997.
[2]
Count
9 (child abuse) and count 10 (contravention of section 9(a) of the
Sexual Offences Act
[1]
) were
only put to accused no. 2. Despite the fact that the appellant was
not charged with child abuse, he was nonetheless convicted
and
sentenced on count 9. The State and counsel on behalf of the
appellant were in agreement that the conviction and sentence in
respect of this charge should be set aside.
[3]
The
appellant was convicted on charges 1 – 9 and on 30 January
2015, the following sentences were imposed on him:
Count 1:
Life imprisonment;
Count 2:
5 years’ imprisonment;
Count 3:
5 years’ imprisonment;
Count 4:
3 years’ imprisonment;
Count 5:
3 years’ imprisonment;
Count 6:
3 years’ imprisonment;
Count 7:
3 years’ imprisonment;
Count 8:
Life imprisonment;
Count 9:
3 years’ imprisonment.
[4]
The
appellant has an automatic right of appeal which was noted in respect
of both conviction and sentence. The appellant was legally
represented throughout the trial and pleaded not guilty to all the
charges.
Point
in limine:
Guilty finding on count 9.
[5]
Although
count 9 was only put to accused no 2, the appellant was nonetheless
convicted and sentenced to 3 years’ imprisonment
on this
charge.
[6]
The
appellant raised a point
in
limine
submitting that he ought not to have been convicted and sentence on
charge 9. The State conceded that count 9 was only put to accused
2
and that the conviction and sentence in respect of this charge ought
to be set aside.
[7]
This
accords with the record and the conviction and sentence in respect of
court 9 is accordingly set aside,
Background
[8]
The
complainant is the stepdaughter of the appellant. At the time of the
commission of the offences the appellant was married to
her mother
(accused no. 2).
[9]
The
complainant painted a grim and harrowing picture of how the appellant
repeatedly sexually assaulted and raped her. This happened
over a
lengthy period of time in her bedroom in the family home. The
appellant even removed the lock from her bedroom door to allow
him
unhindered access to his young prey.
[10]
Initially
the appellant would come to the complainant’s bedroom and
inappropriately touch her breasts and private parts. The
sexual
assault progressed to a point where she was raped approximately three
times a week and later on a daily basis. She testified
that she told
the appellant to stop. When she resisted his unwelcome conduct, he
told her in no uncertain terms that she should
keep quiet. Sometimes
the appellant would also use force when she resisted him: He would
hit her with a fist, pick her up and throw
her against the wall and
would place his hand over her mouth so that she could not scream. He
also threatened that he would beat
her to death if she told her
mother.
[11]
Often
when they were alone in his car on their way to the shops he would
inappropriately touch her by placing his hand in her panty.
He would
also insert his fingers into her private parts. The complainant
testified that on one occasion her mother walked into
the room whilst
he was on top of her. Her mother pushed him from the bed and stormed
out of the room. The complainant then tried
to tell her mother that
the sexual assault had been going on for years but it appeared to her
that her mother did not believe her.
After this particular incident
the appellant stopped coming to her bedroom only to resume raping her
after a while.
[12]
The
complainant testified that the sexual assault and rape commenced in
2003 when she was still 15 and ended when the turned 17.
The turning
point came about when she was informed that the appellant had turned
his attention to her sister and that he started
to sexually assault
her too. The victim explained that up until then she did not report
the incidents to anybody as she was too
afraid to do so.
[13]
In
2004 the complainant met her husband (Shane). This, however, did not
deter the appellant and he continue raping her until she
told Shane
and the matter was reported to the police.
Grounds
for appeal
[14]
The
appellant relied on the following 8 grounds of appeal in the Notice
of Appeal:
1.
That the
State did not prove its case beyond a reasonable doubt;
2.
The trial court did not properly evaluate the evidence by not taking
into account improbabilities and contradictions;
3.
The failure
of the trial court to consider that a medical doctor was not called
to testify in respect of forceful penetration;
4.
No DNA
evidence was presented;
5.
The failure
of the State to call certain witnesses;
6.
The failure
of the trial court to properly consider the possible motive which the
complainant and accused may have had to falsely
implicate him;
7.
Rejecting
the version of the appellant and his defence witness;
8.
All
evidence was hearsay evidence.
[15]
The
appellant has now conceded the points raised in paragraphs 3, 4, 5
and 8 as well as the point taken that the complainant delayed
reporting the matter.
[16]
The
only points that remained ad conviction are: (i) whether the evidence
was properly evaluated; and (ii) whether there was a motive
to
falsely implicate the appellant.
Proper
evaluation of the evidence
[17]
The
trial court was alive to the fact that the complainant was a single
witness in respect of sexual offence and duly applied the
cautionary
rule in evaluating the evidence of the complainant. The learned
Magistrate also took into account the demeanour of the
complainant:
He took into consideration that the complainant was calm when giving
evidence and that she did not contradict herself.
More importantly,
the learned Magistrate took into account that there was corroboration
for the evidence of the complainant in
that of accused 2 (her mother)
as well as in the report made to Mrs Nel (Clinical Psychologist).
[18]
I
can find no reason to interfere with the assessment of the evidence
of the complainant. Although it is accepted that a trial
court
must approach the evidence of a single witness with caution
[2]
,
the Appellate Division in
S
v Sauls and Others
[3]
pointed out that “the exercise of caution must not be allowed
to displace the exercise of common sense”.
[19]
I
can also find no reason to interfere with the trial court’s
credibility findings. A Court of Appeal
[4]
will only interfere with the credibility findings of a trial court
where the trial court materially misdirected itself insofar
as its
factual and credibility findings are concerned. I can find no
such misdirection in the present matter. Moreover,
the trial
court had the advantage of seeing and hearing the witnesses.
[20]
I
can also find no reason to interfere with the trial court’s
finding that the complainant, her husband and accused no. 2
deliberately fabricated a story to implicate the appellant. The
complainant never deviated from her version of the events. She
gave a
detailed statement to the police which is consistent with her
evidence in court. Lastly, the evidence of Mrs Nel –
the
Clinical Psychologist – are also instructive in that she
explains the psychological trauma and impact sexual assault
has on a
victim particularly at the hands of someone who was in the position
of a father/stepfather to the complainant: The appellant
abused the
complainant from a very young age. She was only 15 when the abuse
started. The abuse gradually culminated in her being
systematically
raped over an extensive period of time. The sexual assault was also
often accompanied by violence and threats.
All of this had a
traumatic impact on the complainant.
[21]
The
fact that the complainant later had a relationship with a married man
(who later became her husband) and the fact that the appellant
did
not approve of the relationship, does not cast doubt on her version
of the facts. The fact that the complainant did not fall
pregnant
during the time the appellant raped her also does not cast doubt on
her version.
[22]
I am
accordingly in agreement with the finding by the trial court that no
motive to implicate the appellant falsely was established.
Ad
sentence
[23]
Counsel on behalf the appellant only took issue with the fact that,
although the appellant was
charged with two counts of rape as
contemplated in section 51(2) of the Criminal Law Amendment,
[5]
the State did not allege or specify the circumstances that triggered
the applicability of this section. More in particular, neither
of the
two charges inform the appellant that (i) the complainant was 15 at
the time when the rapes started and; (ii) that the complainant
was
raped multiple times over the course of at least two years.
[24]
It was accordingly submitted that the court
a
quo
misdirected itself in imposing a sentence of life imprisonment in
respect of the two counts of rape (counts 1 and 8) in the absence
of
this information having been provided to the appellant in the charge
sheet.
[25]
In support of this contention, the Court was referred to the decision
of the Constitutional Court
in
Ndlovu
v S
[6]
where the pertinent issue was whether the appellant’s right to
a fair trial was infringed in circumstances when, after he
(Ndlovu)
had been charged with rape read with one minimum sentencing
provision, but was sentenced pursuant to a different, harsher,
minimum sentencing provision.
[7]
In the
Ndlovu
-matter,
the appellant was only charged with rape in that he unlawfully
and intentionally had sexual intercourse with a female
without her
consent read with the provisions of section 51(2) of the Criminal Law
Amendment Act.
[8]
Yet, the
Magistrate’s Court in that matter imposed a sentence of life
imprisonment in terms of section 51(1) of the Criminal
Law Amendment
Act despite Ndlovu having been charged in terms of section 51(2). In
concluding that the Magistrate did not have
the necessary
jurisdiction to convict the appellant in terms of section 51(1) in
circumstances where he was charged with an offence
as contemplated by
section 51(2) of the Criminal Law Amendment Act, the Court said the
following:
“
[45]
The Magistrate was aware that the charge was “rape read with
the provisions of [s]ection 51(2)” and specifically
found Mr
Ndlovu “guilty as charged”. This wording simply does not
permit an interpretation that the Magistrate in fact
convicted
Mr Ndlovu of rape contemplated in section 51(1). Nor does
the evidence of the complainant’s injuries
automatically cure
the charge in terms of section 51(1), as posited by the state.
A defective, or incomplete, charge may
be remedied by evidence in
some instances by section 88 of the Criminal Procedure Act.
However, this charge was complete
and not defective. Quite simply,
the charge was not rape involving the infliction of grievous bodily
harm and evidence alone could
not make it so.
[46] In the light of
this, I can do nought but conclude, inexorably, that the
Regional Court did not have jurisdiction to impose
life
imprisonment in terms of section 51(1) of the Minimum Sentencing
Act. Mr Ndlovu was convicted of rape, read with section 51(2);
accordingly, the Regional Court was required in terms of
section 51(2) to impose a minimum sentence of 10 years (as he
was
treated as a first offender). The Regional Court’s
jurisdiction was limited in terms of section 51(2) to imposing
a
maximum sentence of 15 years.”
[47] In the result,
because the Regional Court did not have jurisdiction to sentence Mr
Ndlovu in terms of section 51(1), his application
must succeed.”
[26]
In the present matter, similar to the matter in
Ndlovu
,
the appellant was only charged with rape in that he “
wederregtelik
en opsetlik met ‘n vrouenspersson , te wete Alcicia Danielle
Lewis vleeslike gemeenskap gehad het sonder haar
toestemming …
gelees met die bepalings van Art 51(2) van die Strafregwysigingswet
105 van 1997
”.
However, and similar to the
Ndlovu
-case,
the Magistrate imposed a sentence of life imprisonment in terms of
section 51(1) of the Criminal Law Amendment Act in respect
of both
counts 1 and 8 despite the fact that he was charged in terms of
section 51(2) and not in terms of section 51(2). Moreover,
the
circumstances which may have given rise to the jurisdiction to
sentence the appellant to life imprisonment in terms of section
51(1)
of the Minimum Sentencing Act are also not referred to in counts 1
and 8.
[27]
When the charges were put to the applicant, no mention was made of
the fact that the complainant
was only 15 at the time nor of the fact
that she was repeatedly raped. After the charges were put to the
appellant the Magistrate
advised him that a minimum sentence of
between 10 and life imprisonment may be imposed but again without
setting out the circumstances
under which a sentence of imprisonment
for life would have been applicable.
[9]
[28]
Moreover,
counts 1 and count 8 read exactly the same and despite no difference
in the two charges (apart from the dates on which
the rapes took
place namely in 2003 and 2004), the appellant received two life
sentences.
[29]
In
terms of section 51(1) of the Criminal Law Amendment Act a minimum
sentence is prescribed in respect of certain offences:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.”
[10]
[30]
Part
I of Schedule 2 includes rape in circumstances where the victim was
(i) raped more than once by one or more than one person
and; (ii)
rape where the victim is a person under the age of 16 years.
[31]
Had
the appellant been charged with an offence falling within the ambit
of Part 1 of Schedule 2, the court
a
quo
would have been able to sentence the appellant to life imprisonment
provided that the appellant had been convicted of an offence
referred
to in Part I of Schedule 2.
[32]
The
minimum sentence that can be imposed on a person
found
guilty in terms of section 51(2) of the
Criminal
Law Amendment Act (such as rape read with read with section 51(2) of
the Criminal Law Amendment Act) is 10 years’
imprisonment (in
the case of a first offender). In terms of the section 51(2)
the
maximum term of imprisonment that a Regional Court could impose
under section 51(2) is the applicable minimum sentence
(10 years)
plus five years (15 years).
[11]
[33]
During
the trial, evidence was led by the complainant that she was 15 at the
time when she was first raped. This evidence was corroborated
by
accused no 2. Evidence was also led to the effect that the
complainant was repeatedly raped during 2003 and 2004.
[34]
Despite
this evidence having been led, scant reference was made during the
submissions on behalf of the State in respect of sentencing
regarding
the fact that evidence revealed that the complainant was 15 when she
was first raped and that she was repeatedly raped
thereafter.
[35]
The
Magistrate did not have the jurisdiction to impose life imprisonment
in terms of section 51(1) in circumstances where the appellant
was
charged in terms of section 52(2) of the Criminal Law Amendment Act.
The fact that evidence was led to the effect that the
complainant was
15 at the time when she was first rape and that she was raped
repeatedly thereafter does not, in the words of the
Constitutional
Court in
Ndlovu
“automatically cure the charge in terms of section 51(1)”.
[36]
I
should also mention that in convicting the appellant the learned
Magistrate convicted the appellant “soos aangekla”.
If
regard is had to the charge sheet, the appellant was charged with
rape read with the provisions of section 51(2) of the
Criminal
Law Amendment Act.
The
conviction in respect of charges 1 and 8 was therefore in terms of
section 51(2) of the
Criminal
Law Amendment. However, notwithstanding this conviction, the learned
Magistrate sentenced the appellant in terms of section
51(1) of the
Criminal Law Amendment Act.
[37]
In
the result the appeal must succeed and the sentences of life
imprisonment imposed in respect of the conviction on both counts
1
and 8 be set aside.
Should this court
impose a sentence?
[38]
Although
it is preferable that the trial court imposes a new sentence in terms
of section 51(2) of the
Criminal
Law Amendment
Act,
I am of the view that, in this particular matter, it is in the
interests of justice to determine the matter finally particularly
in
light of the fact that the trail took years to complete: The trial
commenced in December 2006 and was only finalised on 30 January
2015
when sentence was handed down.
[39]
In
terms of section 51(2) of the Criminal Law Amendment Act, the minimum
sentence that could have been imposed on the appellant,
having been a
first offender, could have been 10 years’ imprisonment and the
maximum 15 years’ imprisonment.
[40]
What
cannot be ignored in considering an appropriate sentence is the fact
that the appellant had been convicted of heinous crimes.
The facts in
this matter speak for themselves. I can put it no better than the
court in
S
v C
:
[12]
“
Rape is regarded
by society as one of the most heinous of crimes, and rightly so. A
rapist does not murder his victim - he murders
her self-respect and
destroys her feeling of physical and mental integrity and security.
His monstrous deed often haunts his victim
and subjects her to
mental torment for the rest of her life - a fate often worse than
loss of life. Serial rapists and murderers
are regarded by society as
inherently evil beings. They are the most feared and loathed
criminals in our community. Society demands
protection in the form of
heavy and deterrent sentences from the courts against such atrocious
crimes.”
[41] See
also
[zRPz]S
v Chapman
[13]
where the Court likewise verbalised the devastating effects of this
terrible offence on the victim as follows:
“
This in our view
is a correct approach. Rape is a very serious offence, constituting
as it does a humiliating, degrading and brutal
invasion of the
privacy, the dignity and the person of the victim.
The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the Constitution and to any defensible
civilisation.
Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets,
to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the peace
and tranquillity of their homes
without the fear, the apprehension
and the insecurity which constantly diminishes the quality and
enjoyment of their lives.”
[42]
The
court
a
quo
has
already taken into account all relevant factors in deciding on an
appropriate sanction albeit in the context of section 51(1)
of the
Act. Those same considerations apply in considering an appropriate
sanction in terms of section 51(2) of the Criminal Law
Amendment Act.
[43]
The
offence with which the appellant was convicted of induces a sense of
shock and horror and I am, in particular in agreement with
the
learned Magistrate’s labelling of the appellant as a “seksuele
roofdier” (“sexual predator”):
“
Die getuienis voor
die hof toon baie duidelik aan dat voor die hof daar n seksuele
roofdier stand wat sy situasie misbruik het om
onskuldige mense uit
te buit vir sy seksuele bevrediging en dit is die bevinding van
hierdie hof dat hierdie hof geen ander keuse
het as om die belange
van die gemeenskap, die erns van hierdie misdryf, die veelvuldige
voorkoms daarvan te sien as faktore wat
in hierdie geval beklemtoon
moet word.”
[44]
What
makes matters even more repulsive is the fact that the appellant
abused his position as a stepfather to violate a vulnerable
young
woman: He even removed the lock from her bedroom door so that he
could have easy access to his vulnerable prey. Although
the
appellant is not the complainant’s biological father, he was
married to her mother for many years and as such stepped
into the
shoes of a father. She was entitled to his protection. Instead he
repeatedly violated her trust and exerted his physical
and emotional
power over her for his own satisfaction. The Court in
S
v M
[14]
explains why rape with
this context is particularly horrendous:
“
[39] The accused
occupied a position of power in relation to his stepdaughter. She was
vulnerable to his seniority in age and familial
standing, his
affinity with her mother who was the only other adult in the home,
his role as
paterfamilias
in
the home and family. This was appreciated in
S
v Jansen
1999
(2) SACR 368
(C)
where
it was said at 378
g
-
h
that
'(r)ape of a child is an appalling and perverse abuse of male power';
in
S
v Swart
2000
(2) SACR 566
(SCA)
where
reference is made to how the rapist 'exploited to the full the
position of power which he held over them'; in
S
v G
2004
(2) SACR 296 (W)
where
the Court commented at 301
c
-
d
,
'She was raped in the safety of her own home by a person towards whom
she was affectionate, and from whom she was entitled
to expect
protection. The accused has violated the trust which the complainant
and her mother placed in him'; in
S
v P
2000
(2) SA 656
(SCA) at 660G where the Court commented how a grandfather
had 'violated that love and abused that position of trust'.
“
[40] In
S
v Abrahams
2002
(1) SACR 116
(SCA)
,
the Court was concerned with the rape of a pubescent child by
her father. The Court stated at 123
d
-
e
:
'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. That
is what occurred here, and
it constituted an egregious and
aggravating feature of the accused's attack upon his daughter.'
The
Court referred to a number of features applicable to rape within the
home.
'First and obviously, a
family member is also a member of the wider public and equally
obviously as deserving as the rest of the
public of protection
against rapists, including those within the home. Indeed, where a
rapist's victim is within his family, she
constitutes the part of the
public closest to, and therefore most evidently at risk of, the
rapist.
Second, rape within the
family has its own peculiarly reprehensible features, none of which
subordinate it in the scale of abhorrence
to other rapes. The present
case illustrates them with acute force. The rapist may think the home
offers him a safe haven for his
crime, with an accessible victim,
over whom he may feel (as the accused did) he can exercise a
proprietary entitlement. Though
not the case here, a
family victim may moreover for reasons of loyalty or necessity feel
she must conceal the crime. A woman or
young girl may further
internalise the guilt or blame associated with the crime, with
lingeringly injurious effects. This is particularly
so when the
victim is the rapist's own daughter, and the more so when the
daughter is of tender years.”
[45]
In
the circumstances of this matter I am therefore of the view that a
minimum sentence of 10 years’ imprisonment is wholly
inappropriate. I conclude that a sentence of 15 years’
imprisonment in respect of each of the two convictions of rape
(charges
1 and 8) read with section 51(2) of the Criminal Law
Amendment Act is appropriate.
[46]
Unfortunately,
this is the point where the criminal justice system dismally failed
this complainant. The evidence presented to the
trial court should
have alerted the Magistrate and the prosecutor that the appellant
ought to have been charged with rape read
together with section 51(1)
of the Criminal Law Amendment Act in that the victim was 15 at the
time when the rapes started and
that she was raped multiple times
over the period of at least two years. This was not done. It is this
kind of oversight that has
prompted the Constitutional Court in
Ndlovu
[15]
to level the following criticism against those individuals and state
entities who reminisced in their duty to correctly charge
the
appellant:
[16]
“
[58]
When even the most heinous of crimes are committed against persons,
the people cannot resort to self-help: they generally cannot
prosecute the perpetrators of these crimes on their own behalf.
This power is reserved for the NPA. It is therefore
incumbent
upon prosecutors to discharge this duty diligently and competently.
When this is not done, society suffers.
In this case the
prosecutor failed to ensure that the correct charge was preferred
against Mr Ndlovu. The prosecutor was
from the outset in
possession of the J88 form in which the injuries sustained by the
complainant were fully described. It
boggles the mind why the
proper charge of rape read with the provisions of section 51(1) of
the Minimum Sentencing Act was not
preferred. This can only be
explained as remissness on the part of the prosecutor that, further,
should have been corrected
by the Court. This error is acutely
unfortunate – victims of crime rely on prosecutors performing
their functions properly.
The failings of the prosecutor are
directly to blame for the outcome in this matter.”
Order
[47]
The
following order is made:
1.
The
appeal against conviction and sentence imposed by the Regional Court,
Secunda in respect of charges 2 – 7 is dismissed.
2.
The
appeal against conviction and sentence imposed by the Regional Court,
Secunda in respect of charge 9 is upheld and
the
appellant’s conviction and sentence are set aside.
3.
The
appeal against conviction imposed by the Regional Court, Secunda in
respect of charges 1 and 8 is dismissed.
4.
The
appeal against the sentence of life imprisonment imposed by the
Regional Court, Secunda in respect of charges 1 and 8 succeeds
and is
replaced by the following order:
4.1
In
respect of charge 1 the appellant is sentenced to 15 years’
imprisonment antedated to 30 January 2015.
4.2
In
respect of charge 8 the appellant is sentenced to 15 years’
imprisonment antedated to 30 January 2015.
5.
The
sentences on counts 1- 8 are to run concurrently.
The
effective sentence will thus be 15 years.
AC BASSON, J
JUDGE OF THE HIGH
COURT
I
AGREE
TAN
MAKHUVELE
JUDGE OF THE HIGH
COURT
APPEARANCES:
FOR
THE APPELLANT :
ADV L A VAN WYK
INSTRUCTED
BY
:
LEGAL
AID SOUTH AFRICA
FOR
THE DEFENDANT :
ADV M J VAN VUUREN
INSTRUCTED
BY
:
DIRECTOR OF PUBLIC PROSECUTIONS
[1]
Act 23 of 1957.
[2]
[2]
S
v Miggel
2007 (1) SACR 675
(C) at
678
A
– C
:
“
It
is
settled law that the evidence of a single witness must be approached
with caution. In the normal course of events, the
evidence of a
single witness will only be accepted if it is in every important
respect satisfactory or if there is corroboration
for that evidence.
(See S v Sauls and Others
1981 (3) SA 172
(A) at 180E -
G; S v Letsedi
1963 (2) SA 471
(A) at 473F; R v
Mokoena
1956 (3) SA 81
(A) at 85 - 6.) The corroboration that
is required is confirmatory evidential material outside the evidence
that is being corroborated.
(S v Khumalo en Andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 328A - B.) The corroboration does not necessarily
need to link the accused with the crime.
The
evidence of a single witness, as Holmes JA said in S v Artman
and Another
1968 (3) SA 339
(A) at 341A - B, 'does not require
the existence of implicatory corroboration; indeed in that
event she would not be a single
witness'.”
[3]
1981 (3) SA 172
(A) at
643: “
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in S v Webber
1971
(3) SA 754
(A)
at
758). 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 the testimony, he
is
satisfied that the truth has been told. The cautionary rule referred
to by DE VILLIERS JP in 1932 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"
(Per SCHREINER JA in
R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham
1955
(2) SA 566
(A)
at
569). It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common sense
.”
[4]
S v Francis
1991 (1) SACR 198
(A) at 198J – 199A: “
The
powers of a Court of appeal to interfere with the findings of fact
of a trial Court are limited. In the absence of any misdirection
the
trial Court's conclusion, including its acceptance of a witness'
evidence, is presumed to be correct. In order to succeed
on appeal,
the appellant must therefore convince the Court of appeal on
adequate grounds that the trial Court was wrong
in accepting
the witness' evidence - a reasonable doubt will not suffice to
justify interference with its findings. Bearing in
mind the
advantage which a trial Court has of seeing, hearing and appraising
a witness, it is only in exceptional cases that
the Court of appeal
will be entitled to interfere with a trial Court's evaluation of
oral testimony.”
[5]
Act
105 of 1997.
[6]
2017 (2) SACR 305 (CC).
[7]
Ibid
ad
para [1].
[8]
Act 105 of 1997.
[9]
Section 51(2) of the Criminal Law
Amendment Act provides:
“
Notwithstanding
any other law but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in—
(a)
Part II of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 15
years;
(ii)
a second offender of any such offence, to imprisonment for a
period
not less than 20 years; and
(iii)
a third or subsequent offender of any such offence, to
imprisonment for a period
not less than 25 years;
(b)
Part III of Schedule 2, in the
case of
—
(i)
a first offender, to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a
period
not less than 15 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period of
not less than 20 years;
(c)
Part IV of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 5
years;
(ii)
a second offender of any such offence, to imprisonment for a
period
not less than 7 years; and
(iii)
a third or subsequent offender of any such offence, to
imprisonment for a
period not less than 10 years; and
(d)
Part V of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 3
years;
(ii)
a second offender of any such offence, to imprisonment for a
period
not less than 5 years; and
(iii)
a third or subsequent offender of any such offence, to
imprisonment for a period
not less than 7 years.
Provided that the maximum term of
imprisonment that a regional court may impose in terms of this
subsection shall not exceed the
minimum term of imprisonment that it
must impose in terms of this subsection by more than five years.”
[10]
Part I of Schedule II
reads as follows in respect of rape: “
Rape
as contemplated in
section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007-
(a)
when committed-
(i) in circumstances
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice;
(ii) by more than one
person, where such persons acted in the execution or furtherance of
a common purpose or conspiracy;
(iii) by a person who
has been convicted of two or more offences of rape or compelled
rape, but has not yet been sentenced in
respect of such convictions;
or
(iv) by a person,
knowing that he has the acquired immune deficiency syndrome or the
human immunodeficiency virus;
(b)
where the victim-
(i) is a person under
the age of 16 years;
(ii) is a physically
disabled person who, due to his or her physical disability, is
rendered particularly vulnerable; or
(iii) is a person who is
mentally disabled as contemplated in
section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
; or
(c)
involving the infliction
of grievous bodily harm.
Compelled rape as
contemplated in section 4 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007-
(a)
when committed-
(i) in circumstances
where the victim was raped more than once by one or more than one
person;
(ii) by a person who has
been convicted of two or more offences of rape or compelled rape,
but has not yet been sentenced in respect
of such convictions; or
(iii) under
circumstances where the accused knows that the person committing the
rape has the acquired immune deficiency syndrome
or the human
immunodeficiency virus;
(b)
where the victim-
(i) is a person under
the age of 16 years;
(ii) is a physically
disabled person who, due to his or her physical disability, is
rendered particularly vulnerable; or
(iii) is a person who is
mentally disabled as contemplated in
section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
; or
(c)
involving the infliction
of grievous bodily harm.
Any offence referred to
in
section 2
,
5
,
6
,
7
,
8
,
9
,
10
or
14
(in so far as it relates to
the aforementioned sections) of the Protection of Constitutional
Democracy against Terrorist and
Related Activities Act, 2004, when
it is proved that the offence has-
(a)
endangered the life or
caused serious bodily injury to or the death of, any person, or any
number or group of persons;
(b)
caused serious risk to
the health or safety of the public or any segment of the public; or
(c)
created a serious public
emergency situation or a general insurrection.
Trafficking in persons
for sexual purposes by a person contemplated in
section 71
(1) or
(2) of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
.
[11]
Section 52(2)
provides
that “the maximum term of imprisonment that a regional court
may impose in terms of this subsection shall not
exceed the minimum
term of imprisonment that it must impose in terms of this subsection
by more than five years.
[12]
1996 (2) SACT 181 at 186 par [1].
[13]
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 344J –
345B.
[14]
2007 (2) SACR 60 (W).
[15]
Supra
note 6.
[16]
Section 86
of the
Criminal Procedure
Act 51 of 1977
provides:
“
(1)
Where a charge is defective for the want of any essential averment
therein, or where there
appears to be any variance between the
averment in a charge and the evidence adduced in proof of such
averment, or where it appears
that words or particulars that ought
to have been inserted in the charge have been omitted therefrom, or
where any words or particulars
that ought to have been omitted from
the charge have been inserted therein, or where there is any other
error in the charge,
the court may, at any time before judgment, if
it considers that the making of the relevant amendment will not
prejudice the
accused in his defence, order that the charge, whether
it discloses an offence or not, be amended, so far as it is
necessary,
both in that part thereof where the defect, variance,
omission, insertion or error occurs and in any other part thereof
which
it may become necessary to amend
.”
(2)
The amendment may be made on such terms as to an adjournment of the
proceedings
as the court may deem fit.”