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[2019] ZAFSHC 35
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Manqu v S (A252/2017) [2019] ZAFSHC 35 (9 May 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
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates:
NO
Appeal
Number: A252/2017
In the matter between:
TSHEPISO
TYS MANQU
Appellant
And
THE
STATE
Respondent
CORAM
:
MUSI,
JP
et
CHESIWE,
J
HEARD
ON:
04
FEBRUARY 2019
JUDGMENT
BY:
CHESIWE,
J
DELIVERED
ON:
9
MAY 2019
[1]
The Appellant was convicted in the Regional Court, Bloemfontein, on a
charge of rape of a minor and
sentenced to life imprisonment. The
appeal is against conviction and sentence. Seeing that he was
sentenced to life imprisonment
the appeal came by virtue of his
automatic right of appeal.
[2]
The Appellant was legally represented by Mr Modise. Before he
pleaded, the trial court informed
him of the implications of
section 51(1) read with Part 1 of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (Act) and
that the relevant minimum
sentence of life imprisonment would be applicable if he were to be
found guilty as charged. The Appellant
pleaded not guilty and denied
that he committed the act of rape of against four (4) years old R[….]
M[….] (the Complainant).
[3]
Due the Complaint’s age and the nature of the offence the court
room was cleared and proceedings were
held in camera. The trial
court, in terms of Section 170A of the CPA, used an intermediary for
the minor child to testify.
[4]
The Appellant relied on the following grounds of appeal: that the
court erred in finding that the Complainant
and the State witnesses
were credible and reliable; that it erred in drawing a negative
inference from the Appellant’s version
and not making a
credibility finding in favour of his testimony; and that the State
had not proven its case beyond reasonable doubt.
[5]
The facts of this matter are briefly summarised as follows. The
Complainant testified that she was playing
with a friend when the
Appellant dragged her into a shack and raped her. She explained that
the Appellant closed her mouth as he
undressed her trouser and
panty. She demonstrated, by using anatomical correct dolls, how
the Appellant penetrated her vagina
and anus.
[6]
M[….] O[….] M[….], (M[....]) the Complainant’s
mother, testified that on
the day of the incident she was from work
and could not find the Complainant. With the help of M[….]
(M[....]’s sister)
they started calling the Complainant’s
name. The Complainant responded from within the Appellant’s
shack. M[....] rushed
into the shack and found the Complainant next
to the bed on the floor busy looking for her clothes under the bed.
The Appellant
and the Complainant were both undressed. She asked the
Appellant why he and the Complainant were both undressed, the
Appellant
did not respond. M[....] took the Complainant and left the
shack. After questioning the Complainant for some time she eventually
told her that the Appellant hurt her using a stick, referring to the
Appellant’s penis. M[....] went to report the matter
to the
South African Police Services, and while there, the Appellant was
brought into the police station by community members.
[7]
The third State witness, Constable Ndamase, testified that the
Appellant was brought to the police station
by community members and
that he had scratch marks on his head and a bleeding nose. He noted
that the Appellant’s underwear
had some blood stains and on
closer observation, he discovered that the Appellant still had a
condom on his penis.
[8]
The
Complainant’s
case was corroborated and bolstered by her mother and aunt, who
pointed out and placed the Appellant in the
shack with the
Complainant on the night the offence was committed. The Complainant’s
evidence is further corroborated by
the J88 which was handed in as
Exhibit B. It stated that the Complainant had abrasions at 5-6
o’clock position and
11 o’clock in her vaginal area as
well a fresh tear at 4 o’clock position in her anus area that
indicated the probability
of forceful penetration.
[9]
The Complainant though four years old at the time of the offence was
neither hesitant nor fumbled during
her testimony. She was able to
testify in a formalistic way and demonstrated with the dolls how the
Appellant raped her. This is
noted on the transcribed record page 17
line 10 to 25 as follows:
“
Whilst I was playing on the
line Tshepisho dragged me, he took me into the house he was drunk……
He raped
me he closed my mouth.
Prosecutor: What did he do when he
raped you? ... He undressed me.
Prosecutor: What is
it to undressed? … It is a panty or trouser or pants.
Prosecutor: And
after he undressed you, your trouser and panty then what did he do?
Funny things or strange
things.
Prosecutor: Can you
explain to me Realeboga what is strange things? … It is when
you rape people.
Prosecutor: At that time
when he was raping you, what did you do? … I cried.”
[10] The
Complainant knew the Appellant. He is her uncle. On page on 27 line
20 and page 28 line 5 to 15 the following
is noted:
“
Prosecutor: How many
people? …. There are three. Out of these three, which
one is uncle Tshepisho? ….
It is that one. If you are
able to tell what is he wearing?
Prosecutor: Can you tell
us what it is that he is wearing? …. He is wearing white
garment with a black pants,
with black pants.
Prosecutor: Where is
he sitting? He is sitting on this side.
Prosecutor: The person
you referred to as uncle Tshepisho is on your left side, is he on the
middle or is he on your
right hand side? …He is on my right
hand side.
Prosecutor: What is
uncle Tshepisho holding? … I do not know.
Prosecutor: What
colour is the item which uncle Tshepisho is holding? It is brown.”
[11] It is
trite that evidence of identification must be approached with
caution. The dangers of an incorrect identification
are well-known.
The pointing out of a wrong person by witnesses who act in good faith
has led to notorious cases of injustice.
The evidence of identifying
the accused has to be treated with caution because of the ever
present possibility of an honest mistake
being made by witnesses. In
S v
Mthetwa
[1]
,
Holmes JA stated that:
“
Because of the fallibility of
human observation, evidence of identification is approached by the
Courts with some caution. It is
not enough for the identifying
witness to be honest: the reliability of his observation must also be
tested. This depends on various
factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his
opportunity for observation, both as to
time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused's face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by
or on behalf of the accused. The list
is not exhaustive. These factors or such of them as are applicable in
a particular case,
are not individually decisive, but must be weighed
one against the other, in the light of the totality of the evidence,
and the
probabilities.”
[2]
[12] In my
view, the Complainant was a truthful and reliable witness. T
he
Complainant correctly identified the Appellant in the dock in the
presence of other people who were put in the dock with the
Appellant.
The Complainant was confident enough to confirm that the Appellant is
“
Tshepisho
wa Madinayo”.
[3]
[13]
The
trial court, with the evidence before it, was correctly satisfied
that the State proved the Appellant’s identity beyond
reasonable doubt. The trial court came to the inescapable conclusion
that the Appellant was the person who raped the Complainant
and
correctly convicted the Appellant. From the judgment of the trial
court the learned Magistrate was acutely aware of the conflicts
and
discrepancies in the evidence, having regard to the fact that the
Complainant was a four year old at the time of the offence.
Ultimately the evidence must be assessed as a whole.
[14] The
Appellant could not refute the Complainant’s version except
through his bare denial. The Appellant’s
version was brief and
his evidence was so unconvincing that it could be safely rejected as
not reasonably possibly true. He averred,
for instance that he was
not inside the shack, that he went to his shack after the incident
and denied that he was found with a
condom. He alleged that the
Complainant was raped by someone else, but could not substantiate
this allegation, nor could
he give any reason or evidence as to why
the Complainant would implicated him.
[15] The
Appellant could not dispute the Complainant’s version that a
person called Malume who was drinking alcohol
with the Appellant on
the day the offence was committed went home after drinking and that
she was alone in the shack with the Appellant.
[4]
On the Complainant’s version Malume was not on any occasion
alone with the Complainant. The Appellant simply denied
that he was
in the shack with the Complainant.
[16] The
Complainant, who was six old when she testified, was on the witness
stand for two days and was cross-examined
at length by Mr. Modise.
Indeed the court is an intimidating place for most witnesses and,
doubtless, even more so for a child
witness. In court her evidence
speaks and shows her truthfulness and accuracy. She had to tell the
court a straightforward story
which permitted no fabrication. I am
convinced that had she indeed not been telling the truth, this would
have been obvious to
the court by virtue of her demeanour and other
factors.
[17] In
R v Dhlumayo and
Another
[5]
the
majority,
per Greenberg JA and Davis AJA (Schreiner dissenting) said that:
“…
The trial Judge has
advantages - which the appellate court cannot have - in seeing and
hearing the witnesses and in being steeped
in the atmosphere of the
trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and
whole personality. This
should never be overlooked.”
[6]
[18] An
appeal court will only tamper with the trial court‘s findings
if it is shown that the findings made by
the trial court were clearly
wrong. It has not been submitted that the trial court committed any
misdirection. Furthermore, when
consideration is paid to all
inconsistencies, improbabilities, there is no reason to doubt the
correctness of the credibility findings
made by the trial court. I am
satisfied that the State proved its case beyond reasonable doubt.
Furthermore, the trial court correctly
found the Appellant to be an
untruthful witnesses and correctly rejected his version as false
beyond reasonable doubt.
Before
us, Mr Van der Merwe on behalf of the Appellant, conceded the merits
in respect of conviction. Advocate Botha on behalf
of the
Respondent, submitted that the rape of a four (4) year old is a very
serious offence and would have a lasting impact on
the little girl
though such evidence was not led during the trial. He submitted that
the trial court had not misdirected itself
and it dealt with the
issue of compelling and substantial circumstances.
[19]
In
my view the trial court correctly convicted the Appellant and there
is no reason to tamper with the trial court’s findings
on the
conviction
[20] I now turn to
the appeal against sentence. Counsel for the Appellant submitted that
the trial court incorrectly found
there were no compelling and
substantial circumstances present to deviate from the prescribed
minimum sentence and that there was
no evidence of emotional trauma,
if any, suffered by the Complainant. On that basis he submitted
that this court was at large
to interfere because the court a quo had
committed a misdirection in sentencing the Appellant. Counsel
for the Respondent
submitted that the trial court did not err on the
facts or the law in considering an appropriate sentence. He contended
that the
sentence imposed does not induce a sense of shock nor is it
inappropriate and submitted that the sentence of life imprisonment is
therefore appropriate.
[21] It is
trite that sentencing is a matter of discretion by the trial court.
A court of appeal will only interfere
if the sentencing court has
failed to exercise its discretion judicially. This will be in
situations where the trial court misdirected
itself or committed an
irregularity or the sentence is shockingly inappropriate. This means
the discretion must have been exercised
wrongly.
[22]
The crime which the Appellant was convicted of, falls within the
relevant provisions of section 51 (4) read with
Part 1 schedule 2, of
the Act. The sentence of life imprisonment must be imposed
unless there are substantial and compelling
circumstances which
justify the imposition of a lesser sentence.
[7]
The test of what constitutes substantial and compelling circumstances
was articulated in
S
v Malgas
.
[8]
[23] The
Appellant was in a position of authority and trust in respect of the
minor child. Given the gravity of the
offence, there is no doubt that
the he abused the trust the child had in him, as the he is her uncle.
That alone is
aggravating.
[24]
The violence and abuse perpetrated on children is a scourge which has
become prevalent in South Africa. These type of
offences are on the
increase and the courts has to take cognisance of these offences.
[9]
Rape must be considered to be amongst the gravest socially evil
phenomena which our society encounters. The community values
of
our society must be placed at a primary of importance on the rights
of women and children.
[10]
[25] The
trial court took into consideration the Appellant’s personal
circumstances, and in its view there was
nothing exceptional about
the Appellant’s personal circumstances. The question is was
there misdirection or irregularity
by the trial court and if
substantial and compelling circumstances existed which warranted a
lesser sentence. If none exists then
this court is bound by the
sentence imposed by the trial court.
[26] As
stated, and rightly so, by the trial court, the child was a toddler
that was often allowed to visit the Appellant
during the day and he
abused this position. He did not show any remorse. The fact that
alcohol played a role, as submitted by Counsel
for the Appellant
cannot be regarded as substantial and compelling. There is no
evidence as to how much he drank or what
effect the alcohol had on
him.
[27] Counsel on
behalf of the Appellant submitted that the life sentence imposed on
him should be tampered with as it is shockingly
inappropriate and
that it be reduced to between 15 to 20 years. Mr Both on
behalf of the Respondent, submitted that
the trial court did not
misdirect itself and dealt with the compelling and substantial
circumstances and correctly concluded that
there were none. He
supported the imposed life sentence.
[28] After
careful consideration of all the relevant circumstances I could not
find any substantial and compelling circumstances
which justify the
imposition of a lesser sentence than life imprisonment. There is
nothing that persuades me to impose a sentence
different from that
imposed by the trial court. The sentence imposed is just and
appropriate to this particular offence and
there is no justification
to tamper with it.
ORDER
[29]
Consequently the following order is made;
1. The appeal
on conviction and sentence is dismissed.
2. The
conviction and sentence are confirmed.
S.
CHESIWE, J
I
concur.
C.J.
MUSI, JP
On
behalf of the appellant: Mr. P. L. Van Der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. Botha
Instructed
by:
Director of Public Prosecution
BLOEMFONTEIN
[1]
S v Mthetwa
1972 (3) SA 766
(A).
2
S v Mthetwa above at 768 A-E. See
also S v Khumalo en Andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A)
at
328E – G
and S v
Mlati 1984(4) SA 629 (A) at
632F
– 633C.
[3]
Page 17 line 11 of the record.
[4]
Page 41 line 1 – 5 of the
record.
[5]
R v Dhlumayo and
Another 1948 (2) SA 677 (A).
[6]
Ibid at 705.
[7]
Section
51 (3) of Act 105 of 1997 provides that in the absence of any
physical injuries that shall not constitute substantial
and
compelling circumstances.
[8]
S v
Malgas
2001
(1) SACR 469
(SCA) at 482 c.
[9]
S v SMM
2013 (2) SACR 292
SCA
Majiedt JA said at para [14], “Our country is plainly facing a
crisis of epidemic propositions in respect of rape, particularly
of
young children. The rape statistics induce a sense of shock
and disbelief. The concomitant violence in many rape
incidents
engenders resentment, anger and outrage. Government has
introduced various programmers to stem the tide, but
sexual abuse of
particularly
women and children
continue unabated.”
[10]
S v Swarts and
Another
1992 (2) SACR 380
(C
).