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[2019] ZAGPPHC 277
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Madube v S (A116/2015) [2019] ZAGPPHC 277 (14 June 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
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Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEAL
NO: A116/2015
14/6/2019
In
the matter between:
MADUBE
OUPA FRANK
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MOLOPA-SETHOSA
J
Case
Summary:
An
appeal against conviction and sentence of 20 years' imprisonment for
the rape of a 13 year old girl, K[….] M[….],
imposed at
the Regional Court for the Regional Division of Gauteng held at
Benoni
Order
The
appeal against both conviction and sentence is dismissed.
[1]
The
appellant was arraigned in the Benoni Regional Court on a charge
contravening of Section 3, read with
Section
1, 55, 56 (1), 57, 58, 59, 60 and 61
of
the
Criminal Law (sexual Offences and Related Matters) Amendment Act
32 of 2007
- Rape (read with the provisions of
section 51
as well as
schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended
("the Act"), of a female child aged 10 years old-count 1;
and assault-count 2.
[2]
On
11 September 2013 the appellant pleaded not guilty to count 1-rape;
and pleaded guilty to count 2-assault. The appellant exercised
his
right to remain silent, i.e. did not give a plea explanation, in
respect of the rape charge.
[3]
The
appellant was convicted on 07 November 2013 on all counts as charged.
[4]
On
28 January 2014 the appellant was sentenced as follows:
[4.1]
Count 1: 20 years' imprisonment
[4.2]
Count 2: 6 months imprisonment
[4.3]
The sentence in count 2 was ordered to run concurrently with the
sentence in count 1
[4.4]
The court
a quo
further ordered that in terms of
section
103(1)
of the
Firearms Control Act 60 of 2000
the appellant remains
unfit to possess a firearm; and in terms of
section 50(1)(i)(a)
of
the Criminal Law amendment (Sexual Offences and related matters) Act
32 of 2007 the appellant's name is to be recorded in the
national
Register for Sexual Offenders.
[5]
The
appellant was legally represented during the trial proceedings in the
court
a
quo.
[6]
On
19 November 2009 the appellant brought an application for leave to
appeal against his conviction on the rape charge and 20 years
sentence in respect thereof, before the learned court
a
quo
and
the leave to appeal was granted by the learned magistrate· on
the same day [on 19/11/2009]. The appellant thus appeals
against both
his conviction and sentence.
[7]
The
appellant contends that the trial court erred in convicting him as
the state did not prove its case beyond reasonable doubt.
That the
complainant was not only a single witness but a minor child whose
evidence should have been treated with caution. Further
that there
were contradictions in the state case that the court should have
taken into account.
[8]
The
State presented the evidence of the following witnesses:
[8.1]
K[….] C[….] M[….] ("The complainant");
[8.2
Sister Kate Skosana ("Skosana");
[8.3]
N[….] M[….] ("M[….]");
[8.4]
The appellant testified in his own defence and did not call any other
defence witness.
[9]
K[….]
C[….] M[….], ("the complainant"), who is the
appellant's stepdaughter, testified that she lived
at [….] in
Wattville with her mother and her step father, the appellant. That
the door of her bedroom was not closing properly,
and sometime in
October 2009 she was sleeping at night when the appellant came into
her bedroom and informed her that he needs
to check if she is still a
virgin or not so that he can tell her mother because she was 'busy'.
She testified that the appellant
inserted his finger inside her
vagina and said that he cannot tell if she is a virgin or not and
said that it is better that he
does it the old way, the appellant
then inserted his penis into the complainant's vagina, and did the up
and down movement while
on top of her. She testified that she did not
tell anyone about what the appellant did to her on that day. She was
13 years old
at the time. She was not sexually active at the time;
she was still a virgin, and the appellant after the first sexual
intercourse
said to her that indeed she was still a virgin.
[10]
She
testified that by 'busy' she meant that she went out with her friends
a lot, spent most time with her friends, coming back home
late at
around 20H00 instead of 18H00 as expected by her parents, but that
she never slept out. However, at the time the appellant
first came
onto her, when he said he wanted to check her virginity, including
the second time which is dealt with in para [11]
here below, she was
not yet sexually active.
[11]
She
testified that about two to three weeks after the first incident,
around November 2009, the appellant came into her bedroom
for the
second time. When the appellant entered her room he was naked, he
again raped her. Earlier that evening the appellant had
bought her
cider/Brutal fruit, she was tipsy. She screamed but her mother's
bedroom was further from where she was, her mother
did not hear her;
and her mother was also pregnant at the time, she did not want to put
pressure on her, she did not want to cause
her to have miscarriage.
She testified that the rape by the appellant happened only, twice.
[12]
She
testified that from that time on she put her wardrobe in front of her
bedroom door when she went to sleep to prevent anybody
from coming
into her bedroom room whilst she is sleeping.
[13]
She
further testified that one Friday, the school had just closed; she
forgot to put the wardrobe in front of her bedroom door when
she went
to bed. By that time her mother had had a baby; the appellant came
into her bedroom and she told the appellant that 'it
stops right here
right now', and that she'll tell her mother. The appellant stopped,
saying to her that he did not want to cause
any problems.
[14]
She
testified that the next day, she and her friends went out and stayed
until late at night. Her friends' mother, Ms N[….]
M[….]
picked them up late from a club, she gave them a hiding with sjambok,
and she took them home one by one.
[15]
She
further testified that on that day she then informed N[….]
M[….] that she had problems with her stepfather/the
appellant
who was sexually abusing her. N[….] M[….] accompanied
her home to tell her parents that she will be sleeping
at her house.
On their arrival at her home her step father, the appellant, gave her
a hiding in the presence of N[….] M[….]
and her mother
because she had come home late, at around 22H00.
[16]
The
court
a
quo
evaluated
the evidence of the complainant and after applying the cautionary
rule found that her evidence was truthful and reliable.
[17]
Kate
Skosana testified that she is a nurse working at the Crisis Centre of
the Far East Rand Hospital, and that she was trained
at Baragwanath
Nursing College as a sexual assault nurse examiner.
[18]
She
testified that on 12 October 2013 she examined the complainant
herein. The complainant informed her that she was sexually assaulted
twice by her stepfather at her home in 2009.
[19]
She
noted, amongst others, on the J88-Exhibit B, the contents of which
she read into the record, that
"Hymenal
Changes-Hymen shows signs of old healed scars multiple clefts
and bumps, which is a sign of being sexually active."
[20]
She
testified that it was not possible to tell whether there was forceful
penetration or not, since the old scars were healed.
[21]
N[….]
M[….] also testified and she corroborated the complainant. She
testified that the complainant had indicated
to her that she did not
want to go home and reported to her that the appellant was sexually
abusing her. She took the complainant
home to inform her parents. The
complainant that evening slept at her house.
[22]
She
confirmed that indeed the appellant assaulted the complainant in her
presence on the night in question; she thereafter took
the
complainant to her home with her mother's blessing. Her evidence
differs with that of the complainant where she testified that
the
appellant assaulted the complainant with hands whereas the
complainant and the appellant testified that the appellant assaulted
the complainant with a sjambok. She however confirmed that on the
night in question she had brought a sjambok to the complainant's
home.
[23]
The
appellant testified in his defence and called no witnesses. He denied
that he ever raped the complainant. He testified that
the complainant
alleged that she had been raped by him because the complainant was
given a hiding by him for coming home late on
the night she was
brought home by N[….] M[….]. That the complainant was
always coming home late, at times not sleeping
at home, and that this
made him and the complainant's mother angry, and that is the reason
he assaulted the complainant on the
night she was brought home by
N[….] M[….]. He confirmed that after the night in
question the complainant went and
stayed with N[….] M[….]
at her house, and thereafter went and stayed at her grandparents'
home.
[24]
The
court
a
quo
evaluated
the evidence of the appellant and found his version to be not
reasonably possibly true.
[25]
It
was submitted on behalf of the appellant that the court
a
quo
misdirected
itself in finding that the appellant's version is not reasonably
possibly true. Further that the state has not proved
its case beyond
a reasonable doubt and that the conviction ought to be set aside.
[26]
It
is trite law that the State must prove its case beyond reasonable
doubt and if the appellant's version is reasonably possibly
true, he
is entitled to his acquittal even though his explanation is
improbable. Refer
S
v Mbuli
2003 (I) SACR 97 (SCA) at l 10D-F,
S
v Selebi
2012 (1) SA 487
(SCA),
S
v Van As
1991(2) SACR 74 (W) at 82D-H, S v Jack
s
on
1998 (1) SACR 470
(SCA) and
S
v Schackell
2001 (4) SACR 279
(SCA).
[27]
It
is not necessary for the State to prove its case beyond all doubt. In
S v Pallo and others
1999 (2) SACR 558
(SCA), Olivier JA at para [10]
at 562 followed the approach that was taken in R v Mlambo
1957 (4) SA
727
(A) at 738A-C the following is stated:
"In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
An
accused's claim to the benefit of a doubt when it may be said to
exist must not be derived from speculation but must rest upon
a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not in conflict
with, or outweighed by, the proved facts of the case."
[28]
It
is trite that a court of appeal should be slow to interfere with the
findings of fact of the trial court in the absence of material
misdirection. See R v Dhlumayo & Another
1948 (2) SA 677
(A) at
705-706. An appeal court's powers to interfere on appeal with the
findings of fact of a trial court are limited. In the
absence of
demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will
only be
disregarded if the recorded evidence shows them to be clearly wrong.
[29]
In
S
v
Chabalala
2003
(1) SACR 134
(SCA) at 140 a- b the court stated the following:
"When
dealing with the criminal trial the correct approach is to weigh up
all the elements 'which point towards the guilt of
the accused
against all those which are indicative of his innocence, taking
proper account of inherent strengths and weakness.es,
probabilities
and improbabilities on both sides and, having done so to decide
whether the balance weighs so heavily in favour of
the State as to
exclude any reasonable doubt about the accused's guilt."
[30]
In
S v Francis
1991 (1) SACR 198
(A) at 204 c-e the learned Judge of
appeal, also with reference to Dhlumayo, said the following
"This
Court's powers to interfere with on appeal with the findings of fact
of a trial court are limit... In the absence of
any misdirection the
trial court's conclusion, including its acceptance of D's evidence,
is presumed to be correct. In order to
succeed on appeal accused no.
5 must convince us on adequate grounds that the trial court was wrong
in accepting this evidence
-
a
reasonable doubt will not suffice to justify interference with its
findings
...
Bearing
in mind the advantage which the trial court has of seeing, hearing
and appraising a witness it is only in exceptional cases
that this
Court will be entitled to interfere with a trial court's evaluation
of oral testimony.
"
[31]
In
S. v Hadebe & Others
(supra),
at
645 e- fthe Learned Judge of Appeal held:
"In
absence of demonstrable and material misdirection by the trial court,
his findings of the fact are presumed to be correct
and will only be
disregarded if the recorded evidence shows them to be clearly wrong.
The reasons why this deference is shown by
appellate courts to
factually findings of the trial court are so well-known that
restatement is unnecessary.
"
[Emphasis
added];
[32]
In
S. v. Monyane & Others 2008(1) SARC 543 (SCA) at paragraph [15]
the Court expressed more or less the same sentiments and
added:
"Bearing
in mind the advantage that a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional
cases that this Court
will be entitled to interfere with a trial court's evaluation of oral
testimony.
"
[33]
It
is common cause that the complainant is a single witness in regard to
the rape incident. In
S
v Banana
2000
(2) SACR 1
(ZSC)
Gubbay
CJ (delivering the judgement of the majority of that court) stated
the following at page 8 C:
"Where
the evidence of the single witness is corroborated in any way which
tends to indicate that the whole story was not concocted,
the caution
enjoined may be overcome and acceptance facilitated. But
corroboration is not essential. Any other feature which increases
the
confidence of the court in the reliability of the single witness may
also overcome the caution.
"
[34]
In
S v Sauls and Others
1981
(3) SA 172
(A) at 180G
-
H
it
was held that evidence ca. n be satisfactory, even if it is open to
criticism.
[35]
In
Abdoorham
1954 (3) SA 163
(N) at 165 E-F the
court
held as follows:
"The
court is entitled to convict on the evidence of a single witness if
it is satisfied beyond a reasonable doubt that such
evidence is true.
The court may be satisfied that the witness is speaking the truth
notwithstanding that in some respects he is
an unsatisfactory
witness."
[36]
It was argued on behalf of the appellant that the complainant did not
report to her mother that
the appellant had raped her, even after her
mother had given birth and that 'that shows that the complainant was
not telling the
truth.' As already stated, the complainant testified
that she did not report the incidents to her mother because her
mother was
highly expectant [pregnant] at the time, she did not want
to upset her and maybe cause her miscarriage and also she did not
want
to cause problems to their marriage. She further testified that
she could not even tell her friends because she was ashamed that
they'd say that she was no longer a virgin. It is clear that the
appellant's conduct and violation on her shamed her. After her
mother
had given birth, the appellant came into her bedroom again one night;
she informed the appellant that she was going to tell
her mother
about the rape, that is when the appellant decided to leave her. The
following day she made a report to N[….]
M[….].
[37]
The
circumstances in which the complainant found herself were complicated
and must have been overwhelming for a 13 year old girl.
It would be
unreasonable to expect that her fear would dissipate when her mother
had given birth. The complainant's fear must have
been compounded by
the fact that the appellant was her stepfather and to an extent, in
love with her mother; an adverse inference
cannot be drawn against
the complainant's evidence due to the fact that she did not report to
her mother at the first opportunity.
[38]
Section
58 of Act 32 of 2007 provides that:
'Evidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the
alleged commission
of a sexual offence: Provided that the court may not draw any
inference only from the absence of such previous
consistent
statement.
'
Section
59 of Act 32 of 2007 provides that:
'In criminal proceedings
involving the alleged commission of a sexual offence, the court may
not draw any inference only from the
length of any delay between the
alleged commission of such offence and the reporting thereof'
[39]
In
Monageng
v The State
(590/06)
[2008] ZASCA 129
(01 OCTOBER 2008) at par 24 it was held that
"It
is further widely accepted that there are many factors which may
inhibit a rape victim from disclosing the assault immediately.
Children, who have been sexually abused, especially by a family
member, often do not disclose their abuse and those who ultimately
do
may wait for long periods and even until adulthood for fear of
retribution, feelings of complicity, embarrassment, guilt, shame
and
other social and familial consequences of disclosure. Significantly,
the newly passed
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
provides. in
s 59
that 'in
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from
the length of
any delay between the alleged commission of such offence and the
reporting thereof'. Raising a hue and cry and collapsing
in a
trembling and sobbing heap is not the benchmark for determining
whether or not a woman has been raped. There was thus nothing
unusual
about the complainant's behaviour and her explanation for not
immediately reporting the appellant is plausible".
[40]
The
contradictions in the evidence of the State do not, in my considered
view, materially affect the credibility of the complainant.
In her
evidence in chief she testified that the appellant raped her twice in
2009. Under cross examination it transpired that in
her statement to
the police she stated that the incidents happened in March 2010. It
is common cause that her mother had a baby
in January 2010. She
indicated that she had left her dairy at home; she was never given an
opportunity to fetch her diary. The
defence made much of the
contradictions pertaining to the dates, stating that the court should
not have accepted her evidence as
this is amongst other things, an
indication that as a single child witness she was confused and her
evidence was unreliable. The
contradictions were explained by the
complainant, she was adamant that the two occasions where the
appellant raped her, her mother
was pregnant. The third time he
attempted to rape her was after her mother had had a baby.
[41]
Looking properly at her evidence, she was never confused that when
the two rapes occurred her.
mother was still pregnant, she gave
plausible reasons why she did not tell her mother about the rapes. On
the third occasion when
the appellant attempted to rape her, when she
told the appellant 'it stops right here right now' the mother had had
the baby. As
already stated above, her mother had a baby in January
2010. In the J88 completed by the community nurse who examined her,
Kate
Skosana, under item 5-Clinical findings- it is stated/noted that
the complainant informed the nurse that 'she was sexually assaulted
by her stepfather in 2009', and that 'the perpetrator sexually
assaulted her twice in their home'. This is consistent with her
evidence.
[42]
In
S
v Mafaladiso v
S 2003(1)
SACR 583(SCA) (594a-g)
the
court held that:
"The
court must handle discrepancies between different versions of the
same witness with circumspection. First the court must
ascertain what
the witness meant to say in order to determine whether there was a
discrepancy and the extent of the discrepancy.
The court must take
into account the following: the fact that a statement to the police
was not Subjected to cross-examination,
language and cultural
differences between the witness and the person who took the
statement, and the fact that the police did not
require any
explanation of a statement. Secondly, not every error by, or
discrepancy in the statement affects the witness credibility.
Thirdly, the different versions must be evaluated holistically. This
evaluation includes the circumstances in which the versions
were
given, reasons for the discrepancies, the effect of the discrepancies
on the witness's credibility and whether the witness
had sufficient
opportunity to explain the discrepancies. Lastly, the witness's
statement to the police must be weighed up against
the witness's viva
voce evidence".
[43]
In
S v Mkhole
1990 (1) SACR 95
(A)
the
court gave guidelines in evaluating possible contradictions and
stated as follows:
"Contradictions
per se do not lead to the rejection of a witness's evidence, they may
simply be indicative of an error. Not
every error made by a witness
affects his credibility: in each case the trier of fact has to make
an evaluation, taking into account
such matters as the nature of the
contradiction, their number of importance and their bearing on other
parts of the witnesses
'
evidence.
No fault can be found with his conclusion that what inconsistencies
and differences there were, were of a relatively minor
nature and the
sort of thing to be expected from honest but imperfect recollection,
observation and reconstruction. One could add
that, if anything, the
contradictions points away from the conspiracy relied on"
(98f-g)
[44]
When
evaluating the possible contradictions in the State's case, it should
first be established that the contradictions are material.
It was
held in
S
v Bruiners and Another
1998(2)
SACR 432 (SE) at 435 a-b that
"two
or more witnesses will hardly ever give identical evidence with
reference to the same incident or events. It is thus incumbent
on the
trial court to decide, having regard to the evidence as a whole,
whether such differences were sufficiently material to
warrant the
rejection of the State's version".
[45]
The
complainant was relatively young at the time of the incident.
Considering the lapse of time between the incident and the trial,
her
momentary lapse of memory was reasonable, and it was an indication
that she was not fabricating her evidence.
[46]
Of
importance is that N[….] M[….] corroborated the
complainant by stating that the complainant reported to her that
the
appellant had sexually abused her. She recalls being informed of two
incidents, as testified to by the complainant. She was
an eyewitness
to the appellant assaulting the complainant when she returned her to
her parental home that evening.
[47]
The
long time lapse between the incident and the witnesses having to make
statements and then testifying has an influence on their
recollection
of the events. The incident happened towards the end of 2009, and the
trial started in 2013. The contradictions between
the complainant and
N[….] M[….] are not of such a nature that they could be
classified as material contradictions.
Thus the learned magistrate's
finding that these contradictions were not of material nature such
that the witnesses' evidence can
be found to be untrustworthy or
unsatisfactory cannot be faulted. In the contrary these
contradictions could be a clear indication
that the witnesses did not
conspire against the appellant.
[48]
The
complainant gave detailed and logical accounts of the rape. The
details were too graphically realistic and precise. She was
honest
and adhered to her version throughout. The complainant remained
unshaken throughout the cross-examination to which she was
subjected
by the defence attorney. There is no basis for a finding that the
complainant falsely implicated the appellant because
she knew that
she was going to be reprimanded for staying out until late. She did
not exaggerate the appellant's conduct.
[49]
The
fundamental rule to be applied by a court of appeal is that, while
the appellant is entitled to a rehearing, because otherwise
the right
of appeal becomes illusory, a court of appeal is not at liberty to
depart from the trial court's findings of fact and
credibility,
unless they are vitiated by irregularity, or unless an examination of
the record of evidence reveals that those findings
are patently
wrong. The trial court's findings of fact and credibility are
presumed to be correct, because the trial court, and
not the court of
appeal, has had the advantage of seeing and hearing the witnesses,
and is in the best position to determine where
the truth lies.
Vide:
S
v Francis
1991(1)
SACR 198 (A) at 198J-199A.
S
v Hadebe and Others
1997(2)
SACR 641(SCA) at 645 E-F
[50]
On
the other hand, the evidence of the appellant is riddled with
improbabilities. He gives the impression that the complainant falsely
implicated him.
[51]
The
appellant was found not to be a credible witness. He sought to state
that the complainant falsely implicated him because he
had given her
a hiding/assaulted her with a sjambok on the night she was bought
home by N[….] M[….]. The respondent
correctly submitted
that it is highly improbable that the complainant will falsely
implicate the appellant. The complainant and
the appellant were in
good terms, and this was confirmed by the appellant under cross
examination. The complainant had no motive
whatsoever to falsely
implicate him. From the evidence on record it is clear that the
report to N[….] M[….] was prior
to the appellant
hitting/assaulting the complainant with the sjambok; therefore, it
cannot be correct that the complainant falsely
implicated him because
she had been hit with a sjambok by the appellant.
[52]
The
appellant's version was correctly found to be inconsistent and
improbable. The appellant's version is clearly not reasonably
possibly true. The learned magistrate was correct in convicting him.
[53]
The
complainant was correctly found by the learned magistrate to be an
honest witness. She conceded that she was at times at odds
with her
parent (mother and stepfather/the appellant) because she would have
spent time with her friends (chilling as she called
it) and would
come home late, she would be reprimanded by her mother and/or
stepfather/appellant.
[54]
Clearly the appellant took advantage of the situation, saying to the
complainant that he/appellant
was testing if she/the complainant was
a virgin because she was, as he put it 'busy', as she was coming home
late.
[55]
Her
undisputed evidence is that at the time the appellant started
violating her sexually, she was a virgin; she was not sexually
active. On the two occasions that the appellant raped her she was not
yet sexually active. It is clearly the appellant who broke
her
virginity. Further the appellant clearly took advantage of a young
vulnerable child; there is evidence that he bought liquor/cider
for
the 13 year old girl/complainant, deliberately getting the child
drunk, this evidence stands undisputed, next thing raping
her.
[56]
The
Court
a
quo
looked
at the totality of the evidence. There was no material misdirection
by the court
a
quo.
The
evidence of the state witnesses was corroborated in all material
respect and the identification of the appellant was never an
issue.
The learned regional magistrate's favourable finding about the
children as witnesses can, on the totality of the evidence,
not be
faulted. I am not persuaded that in convicting the appellant the
trial court misdirected itself in any material respect
in its
assessment of the evidence. The totality of the evidence justifies
the trial court's findings and conclusions that the exculpatory
version of the appellant was not reasonably possibly true and that
the guilt of the appellant was proved beyond reasonable doubt.
The
Court a quo correctly found the appellant not to be a credible
witness. As already stated, he sought to state that the complainant
falsely implicated him because he had disciplined her with a sjambok.
From the evidence on record it is clear that the report to
N[….]
M[….] was prior to the appellant hitting the complainant with
a sjambok; therefore it cannot be correct that
the complainant
falsely implicated him because she had been hit by him with a
sjambok. The appellant's version is clearly not reasonably
possibly
true. The trial court treated the complainant's evidence with
caution. The appellant was correctly convicted of the rape
of his
step daughter. The appeal on conviction must therefore be dismissed.
[57]
With
regard to sentence it was submitted on behalf of the appellant that
the trial court misdirected itself in sentencing the appellant
to 20
years' imprisonment. It was further submitted that in imposing such a
lengthy period of imprisonment the court erred as the
sentence is
shockingly harsh and induces a sense of shock.
[58]
A
presentence report was compiled by Ms M. C. Matsimela and the
appellant's personal circumstances and mitigating factors were
recorded as follows:
[58.1]
He was 34 years old;
[58.2]
He was married;
[58.3]
He has three minor children, a son from a previous relationship, the
complainant who is his stepdaughter and a 4 year old
daughter born
from the marriage;
[58.4]
His mother passed away when he was 19 years old;
[58.5]
He dropped out of school when he was in standard 9;
[58.6]
He enrolled for electrical engineering in 1996 at Benoni technical
college
but could not complete his studies due to financial constraints;
[58.7]
In 2001 he did maintenance services at David Brown Engineering
Company;
[58.8]
He also worked as a driver at Focal Fruits as well as at Amgas;
[58.9]
He was an instructor at MES driving school and at Gogo Norn driving
school;
[58.10]
He also started a driving school in partnership with his father and
was managing same;
[58.11]
He was diagnosed with diabetes and is also HIV positive;
[58.12]
He was a first offender.
[59]
It
was submitted on behalf of the appellant that the trial court erred
in finding that the cumulative effect of the below mentioned
factors
does not constitute substantial and compelling circumstances:
[59.1]
The appellant has three minor children;
[59.2]
The appellant was gainfully employed;
[59.3]
The appellant was a sole breadwinner;
[59.4]
The appellant was a first offender;
[60]
It
was further submitted on behalf of the appellant that 20 years'
imprisonment imposed by the trial court is too harsh and is
strikingly disproportionate to the offence and ought to be set aside,
that the trial court erred in imposing a long imprisonment
term.
[61]
The
respondent agrees with the sentence imposed by the learned Magistrate
and submitted that there was no misdirection on the part
of the court
a quo; that the court took all relevant factors into consideration
when sentencing the appellant and that the sentence
imposed is fair
an appropriate in the circumstances.
[62]
The
imposition of a sentence is pre-eminently for the sentencing court.
It is trite that a court of appeal does not lightly interfere
with a
sentence imposed by the court of first instance; see
R
v Lindley
1957
(2) SA 235
(N). A court of appeal will interfere with the sentence
only if there is a material misdirection or if the court could not,
in
the circumstances of the case, reasonably have imposed the
particular sentence. In
S
v Salzwedel
1999
(2) SACR 586
(SCA) at 591F-G it was held that:
"A
court of appeal was entitled to interfere with a sentence imposed by
a trial court in a case where the sentence is 'disturbingly
inappropriate', or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate, or vitiated
by
misdirection of a nature which shows that the trial court did not
exercise its discretion reasonably.
"
[63]
The
general approach to be followed by a Court of Appeal with regards to
sentence is set out as follows in
S
v Pieters
1987
(3) SA 717
(A) at 727:
"Met
betrekking tot appelle teen vonnis in die algemeen is daar
herhaaldelik in talle uitsprake van hierdie Hof beklemtoon
dat
vonnis oplegging berus by die diskresie van die Verhoorregter.
Juis omdat dit so is, kan en sal hierdie Hof nie ingryp
en die vonnis
van 'n Verhoorregter verander nie, tensy dit blyk dat hy die
diskresie wat aan horn toevertrou is nie op 'n behoorlike
of redelike
wyse uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir
hierdie Hof om 'n Verhoorregter se vonnis te verander
alleenlik as
dit blyk dat hy sy diskresie op 'n onbehoorlike of onredelike wyse
uitgeoefen het. Dit is die grondbeginsel wat alle
appelle teen vonnis
beheers."
[64]
Therefore
the issue of sentence is always a matter for the discretion of the
trial court. In
Kgosimore
v
S
1999
(2) SACR 238
(SCA) at par [10], the Supreme Court of Appeal held
that:
"It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence.
Various tests
have been formulated as to when a court of appeal may interfere.
These include, whether the reasoning of the trial
court is vitiated
by misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense
of shock or whether
there is a striking disparity between the sentence imposed and the
sentence the court of appeal would have
imposed. All these
formulations, however, are aimed at determining the same thing; viz.
whether there was a proper and reasonable
exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate analysis
this is the true inquiry.... Either
the discretion was properly and
reasonably exercised or it was not. If it was, a court of appeal has
no power to interfere; if
it was not, it is free to do so. I can
accordingly see no juridical basis for the stricter test suggested by
counsel; nor is there
anything in section 316B of the Criminal
Procedure Act, or for that matter section 310A, to suggest
otherwise... It follows that,
in my view, whether it is the attorney
-general (now the Director of Public Prosecutions) or an accused who
appeals against a sentence,
the power of a court of appeal to
interfere is the same.
"
[65]
The
appellant was convicted of the rape being the contravention of
section 3 of the Sexual Offences and Related Matters Amendment
Act,
32 of 2007 read with the provisions of section 51 and Schedule 2 of
the
Criminal Law Amendment Act, 105 of 1997
as amended. The victim,
his step daughter who was thirteen (13) years old at the time of the
commission of the offence. The minimum
sentence provisions pertaining
to life imprisonment in terms of
section 51(1)
of the
Criminal Law
Amendment Act, Act
No. 105 of 1997, were applicable in the present
matter by virtue of the fact that the appellant was convicted of an
offence referred
to in
Part I
of Schedule 2 of Act 105 of 1997 as
amended by Act 38 of 2007, namely: ' Rape -where the victim is a
person under the age of 16
years'. The sentencing court was therefore
obliged to impose the prescribed minimum sentence unless there were
substantial and
compelling circumstances justifying the imposition of
a lesser sentence.
[66]
The
trial court found that there were substantial and compelling
circumstances in this case since the appellant indicated that he
was
diabetic and imposed a lesser sentence of 20 years' imprisonment for
the rape. The sentence is not shocking having regard to
the nature of
the crime. This Court does not find any reason to temper with the
sentence. In sentencing the appellant, the trial
court exercised its
discretion judicially and the sentence of life imprisonment was not
found to be appropriate under the circumstances.
[67]
Counsel
for the appellant cited several cases where the sentence of life
imprisonment was reduced oµ appeal; however, Van
Den Heever JA
stated in
S
v D
1995(1) SACR 259(A) at 260e that :
"I
agree that decided cases on sentence provide guidelines not
straightjackets."
[68]
Sentencing
depends on the circumstances of a particular case and lies within the
discretion of a trial court. As it was held in
S v Malgas 2001(1)
SACR 469 (SCA) at 478D-E
"
...
A court exercising appellate jurisdiction cannot, in the
absence of material misdirection by the trial Court, approach the
question
of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers
it. To do
so would be usurp the sentencing discretion of the trial
court.
.."
[69]
In
S v AM 2014(1) SACR 48(FB) at paragraph 14,
it
was held that "Rape of a young child such as the complainant is
always an extremely serious matter, even in the absence
of serious
injuries and despite there being no evidence of permanent
psychological aftereffects. This is all the more so where
the
perpetrator is a man in a position of trust vis-a-vis the
complainant".
Life
imprisonment was confirmed.
[70]
The
appellant showed no remorse for his deeds by denying in court that
the incident had taken place, despite overwhelming evidence.
Instead
of taking responsibility for what he had done, he sought to make the
child a liar. In effect, he victimised her again.
[71]
The
relevant factors and circumstances were properly considered and taken
into account by the trial court. The rape of a 13 year
old child is
dreadful. It is an enormous and heinous crime. This is an aggravating
circumstance of substance and the commission
of this type of offence
against innocent children undoubtedly demands the imposition of long
term imprisonment. The sentence imposed
upon the appellant was
proportional to the offences. It must also be accepted that a child
would not be left unscathed by sexual
assault. Interference with the
imposed sentence is in all the circumstances of this case not
warranted.
[72]
Given
the facts of this case and the prevalence of this offence, the
sentence of 20 years' imprisonment cannot in the circumstances
be
said to be shockingly harsh and disproportionate. The imposed
sentence cannot in my considered view be said to be disturbingly
inappropriate, vitiated by misdirection or totally out of proportion
to the gravity or magnitude of the offences the appellant
has been
convicted of.
[73]
The
appeal against the sentence imposed can thus m my view, not succeed.
[74]
In
the result the following order is made:
1.
The
appeal against conviction is dismissed and the conviction by the
court
a
quo
is
confirmed.
2.
The
appeal against sentence is dismissed and the sentence imposed by the
court
a
quo
is
confirmed.
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree
C
COLLIS
JUDGE
OF THE HIGH COURT
It
is so ordered
For
the Appellant : Adv: MB Moloi
Instructed
by :
Legal Aid
For
the Respondent : Adv: B E Maoke
Instructed
by :
National Prosecuting Authority