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[2019] ZAFSHC 16
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Jantjies v S (A242/2018) [2019] ZAFSHC 16 (28 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A242/2018
In
the appeal between:
PHEELLO
JOHANNES
JANTJIES
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J et CHESIWE, J
JUDGMENT
BY:
MATHEBULA, J
HEARD
ON:
10 DECEMBER 2018
DELIVERED
ON:
28 MARCH 2019
[1]
The appellant was convicted of rape and attempted rape. He was
sentenced to life and eight years imprisonment respectively.
He is
now appealing against both convictions and sentences. I hasten to add
that on the conviction and sentence pertaining to the
charge of
attempted rape, there is a concession that it is in order. I intend
not deal with it as I can find no misdirection on
the part of the
court
a quo
order or
that the sentence imposed is shockingly inappropriate.
[2]
The facts are briefly as follows. A six year old P M testified
that she was walking from school with T and O when they
met with the
appellant. The appellant commanded the two boys to undress her and
thereafter he made her to lie on her back in the
ditch. Thereafter
the boys were instructed to hide behind the rock.
[3]
The accused threatened to kill her if she divulge to anyone what
transpired. He proceeded to penetrate her with his penis. After
he
was done with her, he again threatened to kill her if she reported
the matter to any other person.
[4]
Her version was corroborated by T who testified that he was with the
complainant when they met the appellant. The appellant
was well known
to him as he had seen him many times before the day.
[5]
The appellant instructed the complainant to undress and go in one of
the ditches. He (T) went to the other one. However, before
doing so,
the appellant had already undressed and was lying down with the
complainant. He saw nothing further until the complainant
emerged
from the ditch.
[6]
Their journey home was a quiet one with the complainant not uttering
a word. They did not tell their parents anything because
they were
scared of the appellant. According to him incidents of this nature
occurred several times to the complainant he later
reported this
matter to his mother.
[7]
The complainant’s mother testified that she overheard T saying
that the appellant had sexually assaulted the complainant.
She probed
the children on this aspect and they were all coy to tell the truth.
It was T who told her what happened between the
complainant and the
appellant. This aspect was confirmed to her by the complainant.
[8]
The forensic nurse Amanda van Heerden testified that she examined the
complainant on 12 July 2016. The complainant was anxious
and the
bruise on her neck was still visible. She concluded that based on the
injuries she sustained, they were consistent with
uncooperative
non-consensual sexual intercourse. According to her, the complainant
had been sexually assaulted prior to the examination.
[9]
The appellant elected to invoke his right to remain silent and did
not testify.
[10]
It is trite law that a court of appeal may not depart from the
findings of fact and credibility by the court
a
quo
unless they are vitiated by irregularity or are patently wrong.
[1]
The presumption is that the court
a
quo’s
conclusion on the facts is correct. Such conclusions can be reversed
by this court if we are convinced that the court
a
quo
is
wrong. However, the court of appeal has a duty to investigate the
factual findings made by the court
a
quo
in
order to ascertain that they are correct. In the event that wrong
findings have been made then interference is justified.
[2]
[11]
The proper approach in evaluating evidence was considered in
S v
Chabalala
and held as follows:-
“
The correct
approach is to weigh up all 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 weaknesses,
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 reasonable doubt about the
accused’s
guilt.”
[3]
[12]
I am satisfied that the respondent has proved its case beyond a
reasonable doubt. The court was alive to the fact that the
evidence
of children should be approached with caution because of its inherent
dangers. In addition that a person can be convicted
on the evidence
of a single witness if such evidence is satisfactory in material
respects.
[13]
In this matter, the child witnesses corroborated each other by
detailing in chronological order the involvement of the appellant
in
the sexual molestation of the complainant. In evaluating the
evidence, the court
a quo
was
correct that the evidence of the witnesses cannot be faulted. I
agree.
[14]
In a criminal trial the accused person is not obliged to testify in
rebuttal.
[4]
However, there are
consequences for an accused who when faced with formidable evidence
against him elect not to testify. The legal
position is that the
accused will be at risk if does not produce evidence in rebuttal
where the state has established a
prima
facie
case.
[15]
In this matter, the appellant did not produce any evidence in
rebuttal. He elected to remain silent. This was to his detriment
because the state had a
prima facie
case
against him which required his rebuttal. This means that he forfeited
the opportunity to put before the court
a quo
a version that only had to be reasonably possibly true. He did not.
On this ground, I am convinced that the appeal ought to fail.
[16]
The next instalment of the appeal to be considered relate to
sentence. The court of appeal will interfere with sentence if
there
is an irregularity that results in a failure of justice.
[5]
The appellant had committed an offense for which the Legislature has
prescribed a minimum sentence of life imprisonment. The court
can
only deviate from imposing the aforementioned sentence if there are
substantial and compelling circumstances. The court
a
quo
was
very much aware of its responsibilities in this regard and dealt with
both aggravating and mitigating factors.
[17]
The court concluded that there were no reasons justifying deviation
from the prescribed sentence. The perpetration of rape
against small
children is a scourge that must be uprooted and eradicated in
society. Perpetrators should be dealt with harshly
with clear
intention of sending a message to would be offenders that they will
be shown little mercy by the courts.
[18]
In this matter I could find no blemish that the court a quo exercised
its discretion improperly and/or unreasonably.
[19]
Accordingly I make the following order:-
19.1.
The appeal against convictions and sentences is
dismissed.
______________
MATHEBULA,
J
I
concur.
___________
CHESIWE,
J
On
behalf of the appellant: Adv. L Tshabalala
Instructed
by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. D Pretorius
Instructed
by: Director: Public Prosecutions
BLOEMFONTEIN
[1]
S v Hadebe and others
1997
(2) SACR 641
(SCA) at 645 E - F
[2]
S v M
2006 (1) SACR 135
(SCA) at 152 A - C
[3]
2003 (1) SACR 134
(SCA) at
para 15
[4]
S v Brown
1986 (2) SACR 49
(WC); S v Boesak 2001 (1) SA 912 (CC)
[5]
S v Bogaards 2013 SACR (1)
at para 41